Oregon Court Finds Same-Sex Lesbian Partner to be a Parent

In a letter ruling issued to the parties in Shineovich v. Kemp, Multnomah County Case Number 0703-63564, on March 31, 2011, Circuit Judge Katherine Tennyson ruled that Sondra Shineovich and Sarah Kemp were a "same-sex couple" as that term was used by the Oregon Court of Appeals in its precedent-setting decision in Shineovich v. Kemp, 214 P.3d 29 (Or. App., 2009), and thus as Shineovich had consented to donor insemination of Kemp while they were a couple, she has the status of a parent of the resulting children, and can seek custody and/or visitation on the basis of legal parental status.

Sarah Kemp had argued that the idea of having children was hers alone and that she had never intended sharing parenting of the children with Shineovich.  She had also contested the nature of their relationship, arguing that it did not qualify for the "equal treatment" decreed by the Court of Appeals in this case.

Shineovich and Kemp had lived together for ten years, during which time Kemp became pregnent through donor insemination twice.  When the relationship ended, Kemp was pregnant with their second child.  Shineovich went to court to establish her parental rights after they split up, but Judge Tennyson had dismissed the case, finding that Shineovich had no valid legal theory to assert parental status.  The couple had not entered into any kind of formal written agreement during their years together governing the relevant issues, and Oregon at the time of their break-up had no pertinent express statutory law.  (There is now a domestic partnership law that could cover this situation for those who are registered partners.)

The Court of Appeals responded to Shineovich's appeal of the dismissal of her case by determining that a statute under which the husband of a woman who gives birth to a child conceived through donor insemination is the legal parent of the child if he consented to the insemination for the purpose of having a child would be improperly discriminatory on the basis of sexual orientation if the law was not construed to provide the same privilege to the same-sex partner of a woman who gives birth through donor insemination.  The Court of Appeals remanded the case to Judge Tennyson for a determination whether the relationship of Shineovich and Kemp fell within the parameters of the court's ruling, and whether Shineovich had consented to the insemination with the idea of being a parent of the resulting children.

In her March 31 letter ruling, Judge Tennyson found in favor of Shineovich on both points, reciting a long list of factual findings bolstering the conclusion that this case met the test set out by the Court of Appeals.  She wrote that "the focus of the inquiry here is whether or not these two had a committed partnership which intended, in additional to financial interdependence, to produce and raise children together.  The weight of the evidence answers that question as an overwhelming 'yes.'  Further, it is also overwhelming [sic] apparent from all credible evidence on this record, that the parties worked together to achieve the goal of conceiving and raising children.  There is no question that Shineovich consented to this process.  She contributed with her actions, money and emotions.  This goal was a topic of discussion between Shineovich and Kemp and was a joint effort between them.  These children were an integral part of their partnership."

The judge found that Kemp's version of events was "simply not believable" in light of the documentary evidence about the relationship and the testimony of other witnesses, including Kemp's aunt, who had broken with Kemp over how she had acted regarding the parentage of the children.  Having concluded that the test set forth by the court of appeals was met, Tennyson directed Shineovich's attorney to prepare a judgment reflecting the ruling and further directed that the parties schedule a conference with the court to set dates to resolve the custody and visitation issues.  As Shineovich and Kemp would have equal standing as legal parents of the children, the remaining issue in the case concerns what custody and visitation arrangements would be in the best interests of the children.

Shineovich has been represented at the trial level by David W. Owens and Jodie M. Sneller of Owens, Sneller, Pinzelik & Wood, P.C., in Portland, and on appeal by Mark Johnson of Mark Johnson Roberts.