Cover Story

Judicial preview

"Judicial preview" Continued...

Issue: "Remaking the family," March 6, 2004

In Kantaras, the Florida transgender custody case, Judge Gerald O'Brien went even further. Because state law prohibited same-sex adoptive parents, Michael Kantaras had never adopted the daughter Linda had through artificial insemination. Meanwhile, Michael's "adoption" of Linda's son from another relationship should have been declared invalid under the same law, said attorney Mat Staver, because Michael is really a woman. Further, the Kantarases were never legally married because Florida statute recognizes as valid only heterosexual marriage. Thus, Michael's true gender should have voided any child-custody claim, marital or adoptive.

No matter, Judge O'Brien ruled: "Some jurisdictions prefer to remain in the 19th-century understanding of binary sex that saw male and female as distinct, immutable, and opposite," he wrote, adding that both marriage and gender were primarily a state of mind. Thus Michael Kantaras, despite his possession of double-X chromosomes and fully functioning female private parts, should be considered a male, rendering valid both the marriage and the adoption.

Both the Kantaras case, and the Colorado lesbian custody case involving Dr. Clark and Ms. McLeod, serve as cautionary tales. While still entangled in homosexual relationships, both Linda Kantaras and Cheryl Clark professed faith in Christ. But their newfound faith has not disentangled their children from the consequences of the parents' sin.

In Dr. Clark's case, the judge noted that although Dr. Clark was the legal adoptive parent of her daughter, she had adopted the girl in cooperation with Ms. McLeod. The judge also pointed out that Dr. Clark had added "McLeod" to the girl's name, parented with Ms. McLeod from the time the baby came home from China, and once even filed a Joint Custody Motion in court to ensure Ms. McLeod would have legal custody of the girl in the event of Dr. Clark's death.

Ms. McLeod's lawyers, meanwhile, served up a heap of precedents in which other courts had granted parental rights to nonlegal parents. In the end, the judge ruled that Ms. McLeod was the girl's "psychological parent" and that removing that relationship would harm the girl. Further, since Ms. McLeod is still an active lesbian, the judge's ruling prohibits Dr. Clark from teaching her daughter the biblical position on homosexuality, which could be considered "homophobic."

Judge O'Brien, meanwhile, found that Linda Kantaras's new Christian beliefs were "problematic": Her refusal to accept transgender and homosexuality could drive a wedge between the children and Michael. That opinion factored into his decision to deliver the children, including the son Linda had before she met Michael, to be "fathered" by a woman masquerading as a man.

Meanwhile, the crosshairs of pro-gay family law are trained on new issues: In New York, a gay man who had been joined with another in a Vermont civil union is petitioning for the right to sue a hospital for the wrongful death of his partner-a right normally available only to married survivors. Also in New York, the biological mother of Nicolaj, a 5-year-old boy, is suing to have her deceased lesbian partner's Social Security benefits paid to Nicolaj, even though there is no legal relationship between the dead woman and the boy.

Both cases, if decided á la Kantaras and Clark, could skew the definition of the American family even farther from its original design.

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