A Story About Two Families

I read a very interesting opinion today — Cathey v. Ogea (La. Ct. App. Aug. 22, 2012) and I thought I’d talk briefly about it. Give me a few moments, please, and let us focus briefly on the facts before we turn to evaluating and debating the law.

Melissa Ogea’s four children have the misfortune of having a mother with drug problems. Children two through four have the misfortune of having fathers who are or have been in jail. (Child one is not involved in this case, perhaps because her father — a different father from the father of children two through four — is raising her, or because she is now an adult, or for some other reason that is not disclosed.)

But children two through four have the good fortune of having two aunts — the mother’s sister, Cynthia, and the sister of the father of children two and three, Suzanne — who seem to be good parents indeed. Cynthia and her husband Steven “have been married for twenty-two-and-a-half years, have raised six children of their own,” and would like to raise Melissa’s fourth child, who is now two years old. Suzanne and Charlotte, Suzanne’s “partner” of at least five years’ standing (which I take it means romantic partner), have been raising the second and third child (Suzanne’s nephew). “Suzanne took [children two and three] in when she saw that they were in a terrible home situation due to both of their parents’ serious drug issues. She quit her job to homeschool [child two] and has made great strides in getting him back on track.” Suzanne and Charlotte also had the fourth child living with them briefly, and they would like to raise him as well, though Suzanne is not related to him by blood.

There is therefore a dispute before the Louisiana courts about who gets to raise the fourth child. Melissa wants her fourth child raised by Cynthia and Steven, and so does the child’s father (Joseph Simon). But because the proceeding is one to divest Melissa of custody (as opposed to voluntary placement by Melissa of the child with custodians of her choice), and because Melissa and Joseph acknowledge that they are not fit parents, under Louisiana law the parent’s preference is not relevant. The court is supposed to focus solely on the child’s best interests.

So the court turned to the child’s best interests. It noted that Cynthia and Steven were very good parents, and it noted that Suzanne was a very good parent. It noted that the fourth child had spent only a few months in Suzanne’s home, and before he was one year old, so there’s no strong stability interest cutting in favor of Suzanne. It noted that there is something of a preference, though not a strong one, in favor of half-siblings living together when possible, which would cut in favor of Suzanne. But it held that it was nonetheless in the fourth child’s best interests to live with Cynthia and Steven:

What really concerns us is the fact that while Suzanne is in a stable relationship with her partner, Charlotte, Suzanne lacks stability in the financial situation. Suzanne no longer works and is dependent on Charlotte’s income. Also, the home they live in is Charlotte’s home. If for some reason Suzanne and Charlotte were to part ways, Suzanne would be left without an income to support the children and without a home since Charlotte is not legally obligated for the children. Suzanne did indicate that there is a possibility she could live in a mobile home that she owns, but it is now rented. Furthermore, Suzanne does not have health care insurance because she cannot be carried on Charlotte’s insurance. The children would also not be able to get health insurance under Charlotte’s insurance. Suzanne testified that she had not looked into the cost of getting health insurance for the children.

Now I might be mistaken, but my guess is that the reason for Suzanne’s lack of stability is that Suzanne and Charlotte can’t get married. After all, the description of Suzanne’s situation could be applied to tens of millions of American married women who stay at home to raise the children, but no court suggests that they therefore offer less stability to children than working married women would offer. Moreover, I take it that those women and their children have little trouble getting insurance coverage under their spouses’ insurance policies. (I also think it’s pretty likely — though of course not certain — that, given that Suzanne and Charlotte have been living together since at least 2007, and have been raising two and at one point three children together during that time, they would get married if they could.)

Yet because they can’t get married, what happens? First, they lose out on custody for the fourth child — but that’s not my main point, because though that’s a loss to them, it’s probably not much of a loss for the child, who’ll be in another loving home, and living with six cousins rather than two half-siblings.

Rather, the main problem is that, according to the court’s eminently plausible reading, children two and three are in an unfortunate situation. They too lack stability, because, “If for some reason Suzanne and Charlotte were to part ways, Suzanne would be left without an income to support the children and without a home.” They too wouldn’t be entitled to support from Charlotte, since Charlotte and Suzanne can’t marry, and can’t adopt them together. They too are “not … able to get health insurance under Charlotte’s insurance.”

To be sure, they’re a lot better off than they were with their old opposite-sex-couple (couple, that is, for a while) biological parents. Still, the court’s own reasoning suggests that Louisiana marriage laws puts them in a worse position than they would have been in a state that allows same-sex marriage.

Suzanne and Charlotte could of course try to provide children two and three with some extra assurance of stability (though not health insurance coverage) through the proper contractual arrangements, but it’s not clear that such contracts would be as easily enforceable as the normal obligations imposed by marriage and parenthood would be. And such contracts certainly would be harder and more expensive for many people to negotiate and implement than a simple marriage would be.

I’m not saying that same-sex marriage supporters should condemn the court for its decision. I saw no evidence that the court deliberately faulted Suzanne and Charlotte for being in a same-sex relationship, or even concluded that it was more in the child’s best interests to be raised in an opposite-sex couple than in a same-sex couple (a question on which I express no opinion, since I haven’t looked closely at the evidence). The court did consider the effects of Louisiana’s opposite-sex-only marriage rule, but it didn’t create that rule, and it seemed to evaluate the effects quite reasonably. But the case seems to illustrate that this opposite-sex-only rule is not really helping at least two of the three children at issue here.

Obviously, this sort of thing is hardly the only factor to be considered in deciding whether to recognize same-sex marriages; and I should stress again that I’m reporting based solely on the opinion — there might be some backstory that I’m missing here. But I think that considering this incident helps illustrate some of the advantages of recognizing such marriages.