Is it okay for gay attorneys to make anti-gay arguments in child custody cases?

by Eric Resnick

Cleveland--A gay lawyer and community leader is coming under fire for advancing an argument in a Juvenile Court case that would typically be made by anti-gay attorneys trying to deny LGBT rights.

Tim Downing, an openly gay partner at the Cleveland law firm of Ulmer and Berne, is also on the board of directors of the Human Rights Campaign and a statewide LGBT community leader and organizer.

He is representing a biological mother whose case has raised the ire of attorneys trying to advance the rights of LGBT families.

The case itself is unremarkable. Filed in Cuyahoga County Juvenile Court in March, it involves the breakup of a lesbian couple with a three-year-old child.

The child was born before the couple got together, by artificial insemination from an unknown donor. The couple parented the child together for a year and a half.

During the couple�s relationship, the non-biological mother and her parents cared for the child while the biological mother was at work.

The couple broke up in November. The child is living with the biological mother. She is denying visitation to the non-biological one, who is suing her for visitation rights.

Since the 2002 Ohio Supreme Court decision In re: Bonfield cleared the way for co-parenting agreements between same-sex couples, a network of family law attorneys, many of them lesbians, has grown up. They have advanced cases like this one throughout the state �to educate all of Ohio�s courts on our family issues� as one put it, and to ensure that good case law is created in order to protect LGBT families in the future.

These cases generally rest on the biological parent giving up exclusive custody in favor of a shared arrangement that honors the relationship between the child and the non-biological parent.

In this case, Downing and his associate, Joseph Simms, argue that the non-biological mother has no right to that claim, and that the suit should be dismissed because she is not related by blood or marriage.

Simms� practice includes family law, but Downing�s practice is mostly employment and labor law. As a firm, Ulmer and Berne is primarily corporate counsel.

They argue that, �because [the non-biological mother] cannot allege that she is related to [the child] either by affinity or consanguinity,� Ohio law gives her no standing to bring the suit.

Joan Burda, a lesbian attorney who represents the non-biological mother, said, �The arguments raised [by Downing and Simms] are expected. That�s what needs to be argued for their client to win, but this is the argument you usually see made by the David Langdons of the world.�

Langdon represents the anti-gay group Citizens for Community Values. He filed a brief opposing the Bonfield couple�s co-parenting agreement that raised an issue similar to Downing�s.

�Our non-biological parents can never be related by blood or marriage to our children,� Burda said, explaining the reason why Ohio courts need to be educated about the validity and importance of the relationships non-biological parents have with children.

Downing sees it differently.

He said the biological mother and her family have been clients of Ulmer and Berne, and engaged the firm as defense counsel when this suit was filed.

Downing said he did not become involved in the case until after the firm had already taken it.

He noted that that as a partner, he did not have to take the case.

�I�m doing my job as a lawyer,� said Downing. �Had I been the one originally contacted, I don�t know that I would have taken it.�

Downing has taken LGBT family law cases in the past, but generally trying to protect LGBT family arrangements, including one where he tried to prevent a sperm donor to a lesbian couple from claiming parental rights.

�I want to see that no arguments get made that are anti-gay or involve sexual orientation,� said Downing. �I got involved to protect our community.�

Asked if he believed that could be an issue, Downing said, �It could be.�

Downing called the parenting arguments advanced by the non-biological mother �a red herring.�

�This is a very simple matter,� said Downing. �It is purely statutory. The state legislature has not given the plaintiff in this case any rights.�

�I�m not trying to be anti-gay or to put limits on relationships. The law is the law, and I�m using it to defend a client who is being sued,� Downing said.

Downing said he�s confident the court will grant his motion to dismiss the case, �and if not, it will be decided on the best interest of the child, so [the case] will not make bad law.�

�If it takes a wild turn and it looks like it could be harmful to our community, then I will recommend we withdraw from the case,� said Downing.

Such a withdrawal requires an order from the judge.

The case is before Judge Thomas F. O�Malley.