Idaho marriage certificate

Elsey McLeod doesn't think she's asking for anything unusual. The Colorado woman just wants to continue her role as a parent to the daughter she jointly raised with her former partner, Cheryl Clark.

For nine years their little girl has known the women as "Mommy" and "Momma," respectively. But the only guardian listed on the child's adoption papers is Clark--MeLeod's name omitted by necessity because China, their daughter's country of origin, doesn't allow adoptions by gay or lesbian couples. Furthermore, Colorado doesn't recognize coparent adoptions by same-sex couples. With the fmancial support of an anti-gay marriage group, Clark--now an evangelical Christian--is trying to exploit the limitations of these laws to deny McLeod parental rights.

"Because of that inherent discrimination in Colorado law, gay couples are forced into a Solomonic choice--but in this case, you don't split the baby, you have to split who gets to be the adoptive parent," says Michael Brewer, legal director for the Colorado Legal Initiatives Project. The nonprofit group has filed an amicus brief on McLeod's behalf. So far, the courts have ruled in McLeod's favor, determining that she was the child's "psychological" parent and that the child would be emotionally harmed if the woman she calls Mommy is left out of her life. Clark is appealing that decision.

The U.S. Supreme Court's decision to overturn sodomy laws in 2003 and the Massachusetts supreme judicial court's decision to legalize marriage for same-sex couples this year together appear to signal a tectonic shift in regard to gay equality in the legal system. But gay parents who break up are still finding themselves in legal limbo, forced to sew together a patchwork of protections to ensure that both are shown due consideration as their children's legal parents. Some ex-partners use antigay laws to deny the other custody. "We joMngly call these the 'lesbians behaving badly' cases," says Patricia Logue, senior counsel with Lambda Legal's Midwest office. "They really mirror the complexity of where the country stands on gay relationships."

Expenses mount in fights with mixed outcomes for nonbiological or nonadoptive parents. Many are hoping the courts will begin sending clearer signals about what it means to be a gay parent and how that definition will play out in custody battles.

"The question comes down to, Are the courts ready to recognize our families?" asks Suzanne Goldberg, a visiting law professor at Columbia University who has won several gay rights cases.

Legal experts divide gay custody batties into two categories: cases between gay couples and cases between married couples where one spouse is gay. As several recent high-profile custody cases illustrate, the courts have been inconsistent in dealing with gay couples. In cases concerning formerly married parents, gay rights advocates point to progress in several notable rulings this year:

* In North Dakota, Valerie Damron now has custody of her daughters after the state supreme court overturned a ruling that had denied custody because her relationship with a woman gave her the "wrong moral character" to be a mom.

* In Tennessee, an appeals court overturned a ruling that Joseph Hogue's son would be harmed if exposed to his father's "gay lifestyle."

* In Missouri, Rachel Dickens will be getting another shot at custody of her daughter after the state appeals court ruled that an earlier decision was wrong in denying her custody because she lived with her same-sex partner.

A decision in a similar case in Idaho this year followed this same legal trend but bore mixed results for one gay parent. Following the case of Theron McGriff, the Idaho supreme court ruled that sexual orientation could no longer be used as the sole reason to deny custody. Nevertheless, the same court ruled that McGriff couldn't keep his children overnight if his partner slept in the same home. During the bitter custody hearing, his ex-wife argued that Idaho Falls was a small town and kids at school would harass their daughters if they knew McGriff is gay.

Dozens of McGriff's friends and neighbors are quietly proving that judgment wrong. Once a month they bring covered dishes and a $10 donation to a potluck held in his honor. The ever-hopeful gay father uses the money to pay his enormous legal bills. "All I want in this world is to be allowed to have my whole family together," he says.

"Overall, gay parents' rights are increasing in these cases," says Logue. "Especially in light of Lawrence [the 2003 Supreme Court decision overturning sodomy laws], which now makes it so clear that courts must reject rulings based solely on their animosity toward gay people." And with civil unions in Vermont and California and same-sex marriage in Massachusetts, some gay parents are legally entitled to the sane rights as heterosexual married parents.

In the rest of the country, gay parents lack the protections of marriage and civil unions, but they're increasing in number as the current "gayby boom" gathers momentum. The national gay advocacy group Human Rights Campaign estimates that between 1 and 3 million children in the United States have gay parents.

One case in Nebraska ended well for one couple after Serenna Russell won a notable custody case in June 2002. Russell had applied for joint custody with her former partner, Joan Bridgens. A lower court wouldn't honor the couple's coparent adoption agreement from Pennsylvania because Nebraska didn't offer coparent adoptions for same-sex couples. Ultimately, the courts reversed that ruling.

So far, gay couples in Virginia haven't fared as well. Virginia could become "the Las Vegas of gay divorces," as one attorney called it, if its state supreme court upholds an unusual lower court ruling. In that case, a Virginia judge granted self-described ex-lesbian Lisa Miller-Jenkins sole parental rights over the daughter she raised with partner Janet Miller-Jenkins on the basis that Virginia didn't recognize civil unions. Lisa is the child's birth mother, but when the couple lived in Vermont they had a civil union, which automatically granted Janet parental rights.

When the two dissolved their union, a Vermont court granted Janet visitation rights. But then Lisa took the child to Virginia. Using funds from an anti-gay marriage group--in a parallel of the Colorado case--she won sole custody. The case is currently on appeal.

"It's highly unusual for Virginia to do this," says Greg Nivens, a senior staff attorney at Lambda Legal's Atlanta office who is working with Janet on the case. "Congress passed the Parental Kidnapping Prevention Act that stipulates whoever gets the custody determination first, that court keeps jurisdiction. Otherwise you encourage parents to take a kid to another state and try their luck there."

Nivens thinks his client and other nonbiological parents in Virginia and elsewhere will eventually gain firmer ground in custody battles. Lambda Legal, for instance, recently riled a friend-of-the-court brief in a Virginia case that would put both same-sex parents' names on a birth certificate--a law that would give gay parents one more legal protection in that state. But no matter how many gay parents win in court, many will be hurt in the process, he says. "Above all, the laws are written so the court is supposed to do what's in the best interest of the child," Nivens says. "Even if Janet prevails in the end, it'll be a long time before she can even see her daughter. Think how devastating this must be for the child and for the mother who helped raise her."

What's the surest footing for gay parents? Until courts fully recognize gay families, attorneys are scrambling to tell gay parents what legal steps they can take to provide at least some protection if they ever go through this process. "I tell my gay parent clients to write it all down," says Koenig. "Put together a parental agreement that spells out what everyone's role is in a child's life, including power of attorney. If you, unfortunately, split up, the court will have something that spells out what you originally intended."

Ultimately, most cases come down to gay parents who are willing to push courts to recognize their families. "My partner gets as many cards as I do on Father's Day," says McGriff. "The courts might not see us as a family, but the community that rallied around us and--most important--my children know in their hearts that we are."

Christensen is a producer for CNN.