NicholsonPham

The Undocumented Citizen

A few months ago, I attended a gathering of attorneys active in the LGBT community. Across dinner and after libations, the talk turned, as it often does, to work – discussions of our cases and the thorny problems that often await the lawyer serving the LGBT community. A colleague began to recount the history of a recent matter in North Carolina that underlined the importance of the parenting agreement.

The case began as a love story. Two women, committed to each other in spirit if not in law, decided to raise a child. Together, they chose the sperm donor and impregnated one partner who then gave birth to a healthy baby. Under North Carolina law, only one woman is a mother and is wholly protected under the law. But the intent of the couple was clear: to provide the child with two loving mothers who shared equally in the gifts and responsibilities of parenthood.

No document was ever signed to memorialize their intent. No parenting agreement drafted. Nothing was ever put on paper.

And here, Gentle Reader, is where things turned sour. Love was lost: recriminations, anger, and bitterness followed. The biological mother left with their child, cloaking her flight with the sacrosanct position that North Carolina laws afford her.

Her ex-partner and co-mother was left, undocumented, to fight a lonely battle for rights to see the child that she had helped raise.

The woman, although unlucky in love, was lucky enough to have my colleague as her attorney. The attorney did battle with the weapons that she had: the intent of the two woman as shown through their actions. But she could never hold up a contract or a parenting agreement to the judge. There would not be Plaintiff’s Exhibit #1.

In our practice, we have always represented the undocumented. Generally they are folks who cross the southern border from Mexico and Central America in search of better jobs, higher-quality schools and a rosier life for their children.

North Carolina law creates a new class of undocumented person – the undocumented citizen. She is able to get a driver’s license, partake of her social security and vote for President. But if she is not wary enough to ask her partner to sign a parenting agreement, she can find herself forced to litigate with no guaranteed result in order to have rights to the baby she watched being born and gently cradled in her arms.