DISKOQUEEN99
04-09-2003, 10:45 AM
April 9, 2003
ABDON M. PALLASCH LEGAL AFFAIRS REPORTER
Even though a 10-year-old boy calls him "Dad" and wants to live with him, a Cook County judge ruled Tuesday that because "Dad" actually is a woman, he has no standing to seek custody of the boy.
The boy's mother was granted sole custody. She left court without comment Tuesday.
"The mom was elated, very pleased," said her attorney, Burton S. Hochburg.
The father figure and the boy did not attend the hearing.
The child, Cook County Public Guardian Patrick Murphy and advocates for the transgendered had all hoped Cook County Judge Gerald Bender would make history Tuesday by ruling that the father figure, whose first name is Sterling, has a right to seek custody of the boy. (To protect the boy's privacy, only the parents' first names are being used.)
Sterling's ex-wife, Jennifer, conceived the boy through artificial insemination in 1991, five years after marrying Sterling.
When the two married in 1985, Sterling was dressed as a man and had convinced the bride and all her family she was a male, Bender said in his opinion.
"Sterling concealed her true gender of female from Jennifer until after the ceremony," Bender said.
Sterling had started taking hormone therapy, dresses like a man and is balding, but to this day still has female anatomy, the ruling said.
The couple split up in 1998.
"From our perspective, the case was never about transgendered rights," Murphy said. "I don't know whether the father figure is a man or a woman; I just know he's a hell of a good father, the kid loves him and wants to live with him."
Murphy plans to appeal the ruling.
Bender ordered continued visitation for the child and Sterling, saying, "Sterling and [the boy] have a good and loving relationship. [The boy] has bonded to Sterling, feels comfortable with Sterling and wants to see Sterling."
But Bender said he could not violate state law, which does not recognize same-sex marriages.
"The parties' purported marriage is invalid because the Legislature has determined that a marriage between two individuals of the same sex is prohibited in Illinois," Bender said. "This is not to say that there cannot be same sex relationships that may be more stable than those of married couples, but it is up to the Legislature and not this court to enact the law."
But a gay rights package once considered a sure thing given the new Democratic control of Springfield is now floundering in the state Senate, and it does not even include a provision for same-sex marriage.
State Rep. Larry McKeon (D-Chicago), a gay rights advocate, said the judge did not need to wait for the Legislature to pass a same-sex marriage law in order to consider the best interest of the boy in this case. Illinois courts already approve adoptions by gay couples, he said.
"I am personally appalled by the judge's decision," McKeon said. "The doctrine that has generally been followed by the courts of this state has been to act in the best interests of the child, especially given a pattern of supportive and responsible parenting ."
"What was overlooked and unconsidered is the public guardian's position that Sterling was the better, fitter parent and should have been granted custody," said Heather Sawyer of the pro-gay rights Lambda Legal's Chicago office.
On the other side, Paul Caprio of Family PAC praised the decision, saying, "This ruling sends a very clear message that our ban on same sex marriage will be strictly construed and enforced by the judiciary of this state."
[b]DO YOU THINK THIS WAS A FAIR DECISION? EVEN THOUGH "HE" IS NOT THE BIOLOGICAL FATHER OF THE CHILD AND THEREFORE, HAS NO REAL LEGAL CLAIM TO THE CHILD, HE HAS BEEN IN THAT CHILD'S LIFE AND IS THE ONLY FATHER THAT THE CHILD HAS KNOWN.
SHOULD THE FATHER AT LEAST GET VISITATION?
ABDON M. PALLASCH LEGAL AFFAIRS REPORTER
Even though a 10-year-old boy calls him "Dad" and wants to live with him, a Cook County judge ruled Tuesday that because "Dad" actually is a woman, he has no standing to seek custody of the boy.
The boy's mother was granted sole custody. She left court without comment Tuesday.
"The mom was elated, very pleased," said her attorney, Burton S. Hochburg.
The father figure and the boy did not attend the hearing.
The child, Cook County Public Guardian Patrick Murphy and advocates for the transgendered had all hoped Cook County Judge Gerald Bender would make history Tuesday by ruling that the father figure, whose first name is Sterling, has a right to seek custody of the boy. (To protect the boy's privacy, only the parents' first names are being used.)
Sterling's ex-wife, Jennifer, conceived the boy through artificial insemination in 1991, five years after marrying Sterling.
When the two married in 1985, Sterling was dressed as a man and had convinced the bride and all her family she was a male, Bender said in his opinion.
"Sterling concealed her true gender of female from Jennifer until after the ceremony," Bender said.
Sterling had started taking hormone therapy, dresses like a man and is balding, but to this day still has female anatomy, the ruling said.
The couple split up in 1998.
"From our perspective, the case was never about transgendered rights," Murphy said. "I don't know whether the father figure is a man or a woman; I just know he's a hell of a good father, the kid loves him and wants to live with him."
Murphy plans to appeal the ruling.
Bender ordered continued visitation for the child and Sterling, saying, "Sterling and [the boy] have a good and loving relationship. [The boy] has bonded to Sterling, feels comfortable with Sterling and wants to see Sterling."
But Bender said he could not violate state law, which does not recognize same-sex marriages.
"The parties' purported marriage is invalid because the Legislature has determined that a marriage between two individuals of the same sex is prohibited in Illinois," Bender said. "This is not to say that there cannot be same sex relationships that may be more stable than those of married couples, but it is up to the Legislature and not this court to enact the law."
But a gay rights package once considered a sure thing given the new Democratic control of Springfield is now floundering in the state Senate, and it does not even include a provision for same-sex marriage.
State Rep. Larry McKeon (D-Chicago), a gay rights advocate, said the judge did not need to wait for the Legislature to pass a same-sex marriage law in order to consider the best interest of the boy in this case. Illinois courts already approve adoptions by gay couples, he said.
"I am personally appalled by the judge's decision," McKeon said. "The doctrine that has generally been followed by the courts of this state has been to act in the best interests of the child, especially given a pattern of supportive and responsible parenting ."
"What was overlooked and unconsidered is the public guardian's position that Sterling was the better, fitter parent and should have been granted custody," said Heather Sawyer of the pro-gay rights Lambda Legal's Chicago office.
On the other side, Paul Caprio of Family PAC praised the decision, saying, "This ruling sends a very clear message that our ban on same sex marriage will be strictly construed and enforced by the judiciary of this state."
[b]DO YOU THINK THIS WAS A FAIR DECISION? EVEN THOUGH "HE" IS NOT THE BIOLOGICAL FATHER OF THE CHILD AND THEREFORE, HAS NO REAL LEGAL CLAIM TO THE CHILD, HE HAS BEEN IN THAT CHILD'S LIFE AND IS THE ONLY FATHER THAT THE CHILD HAS KNOWN.
SHOULD THE FATHER AT LEAST GET VISITATION?