Santa Cruz court to hear former lesbian partners' custody dispute over twins

SANTA CRUZ -- In a case that could have far-reaching implications for gay rights, a Santa Cruz woman is seeking to maintain joint custody of 10-month-old twins that she and her former partner, the biological mother of the children, had agreed to raise.

As court battles over the rights of non-biological gay parents garner national attention, the Santa Cruz case contains a complicated wrinkle: The biological mother is now involved in a romantic relationship with the sperm donor, who has joined her in seeking full custody of the boys.

"It's the first case I'm aware of where a lesbian couple in a committed relationship has brought a child into the world, then after breaking up, the biological mother has tried to sub in the biological father," said Deborah Wald, a family law attorney who, along with the National Center for Lesbian Rights, represents the non-biological mother.

"If they won, we would consider it a very dangerous precedent for lesbian couples having children with the assistance of known sperm donors," Wald said.

The biological parents, Maggie Quale and Shawn Wallace, who now live together, say they should be allowed to fully parent their twins, Max and Levi, without a court order allowing even partial custody to Quale's former partner, Kim T. Smith. They say the civil lawsuit filed by Smith, who declined to comment, has put them in the painful position of asserting their rights while still appearing to support the growing effort to protect the rights of gay parents.

"The last thing we want is more stress and conflict," said Quale, a 33-year-old public relations specialist, who is bisexual. "We know there are a lot of people who aren't going to understand. Shouldn't this only be about what best for these babies?"

The 45-year-old Smith, who works in a UC Santa Cruz business office, believes she should be granted joint custody because Quale had agreed to raise the babies with her, a point Quale acknowledges. While Quale and Smith never registered as domestic partners with the state, Smith said they were considered domestic partners on Smith's medical insurance, which was used to pay for the children's birth.

Though Smith never formally adopted the twins, Smith and Quale are both listed as parents on the children's birth certificate, and the children carry the hyphenated last name Smith-Quale even though the pair split up five months after the boys were born.

A Santa Cruz judge has temporarily granted Smith's request for regular visitation with the twins, pending the outcome of a trial. Smith picks up the twins at Quale's home three times a week for visits, including two overnight stays. Both sides say they have tried to settle out of court without success.

The Santa Cruz trial, which will be set after a Jan. 29 hearing, comes to the fore as a federal court in San Francisco heard arguments this week in a case designed to overturn Proposition 8, the ban on gay marriage approved by voters in 2008. Also, a former Vermont couple captured national headlines this month after a biological mother refused to share custody of her daughter, as ordered by a court, with her ex-partner.