Her launching point is a ruling last week by the Delaware Supreme Court that a lesbian may retain joint custody of triplets whom she helped the biological mother, her one-time partner, to raise. In ruling as it did, however, the court did not set a precedent; the justices simply endorsed the custody ruling which had been made by a lower court and took the case to resolve a side issue in the dispute between the former lesbian couple.
However, by upholding the vistation and custody order, the Delaware court's ruling in this case does show how family law is evolving and adapting to our changing social climate - despite the objections of social conservatives.
While many politicians seek legislation that would prevent homosexuals from adopting children, or even to prevent them from marrying or having the legal equivilent of a marriage, the fact remains that a huge number of children are already being raised and cared for by homosexual couples. In fact, by some estimates that number may be as large as 14 million children.
While conservatives strive to re-create the world and mold it into the way they feel it should be, family law courts must strive to deal with the world as it is and with the reality shaped by the real relationships created by couples and the children produced by those real-world relationships.
As Ms. Lithwick's article points out:
If in fact judges around this country are increasingly inclined to recognize the validity of same-sex parenting arrangements, it's not because they are activists ... Courts that adopt broader visions of "parent" and "family" aren't reading radical new rights into their state constitutions. They are doing precisely what family courts are asked to do: Make a determination about what's in the "best interest of the child." That standard remains the polestar for judicial decision-making in both the adoption and custody contexts. And, as it turns out, most children usually have larger and more urgent concerns than what their parents do in bed.
This is, of course, the same point we were making last week in our discussion of an Ohio case which went to the U.S. Supreme Court, but which was denied cert. Adults who involve themselves in relationships may sometimes see those relationships disintegrate. But the children who are the product of those relationships should not have to participate in the emotional warfare that is going on around them.
Family courts must rule in the interests of the children, even if those interests run counter to social moralists or, sometimes, the interests of the child's own parents. Again, as Ms. Lithwich says:
Categorical rules rooted in sweeping moral judgments don't generally work in family law for the same reason they don't work for families: Kids love and need the parents they have, not necessarily the parents we love.