Court of Appeal Scuttles Libel Suit Arising Out of Lesbian Couple’s Battle Over Child Custody
By KENNETH OFGANG, Staff Writer/Appellate Courts
A libel suit arising out of a highly charged parental rights dispute involving a prominent lesbian couple was thrown out yesterday by the Fourth District Court of Appeal.
San Diego Superior Court Judge E. Mac Amos erred in denying Sharon Silverstein’s motion to dismiss the suit by Annette Friskopp, Div. One ruled. Justice Cynthia Aaron said the suit implicated Silverstein’s free speech rights and should have been stricken under the anti-SLAPP law.
The pair met at Harvard Business School, became involved in an often-volatile relationship in 1989 and moved to San Diego the following year. They are the authors of the book “Straight Jobs Gay Lives: Gay and Lesbian Professionals, The Harvard Business School, and the American Workplace,” and appeared on a television news program as advocates of child rearing by lesbian couples.
Friskopp and Silverstein—the parties have been referred to by first name and last initial in court opinions, but their full names have been reported in other media—have been fighting for nearly five years over custody of the two children that Silverstein had through artificial insemination using sperm from an anonymous donor.
The litigation spawned a California Supreme Court decision, Sharon S. v. Superior Court (2003) 31 Cal. 4th 417, upholding the legality of “modified” independent adoptions, also known as second-parent adoptions.
Such adoptions are similar to stepparent adoptions, in that one person adopts the child of the other without the natural parent’s rights being terminated.
Silverstein’s first child, Zachary, was born in October 1996. The two women completed a second-parent adoption the following year.
The second child, Joshua, was born in June 1999. A second-parent adoption petition was filed in September of that year, but the couple separated while the petition was pending.
About a month after the separation, Silverstein obtained a domestic violence restraining order, which was made final following an evidentiary hearing attended by both women.
After attempts at mediating the parental-rights dispute failed, Friskopp began legal proceedings to have herself declared the co-parent of Joshua and to obtain custody of both boys. Silverstein responded that her consent to the adoption of Joshua was the result of fraud and duress and sought to have the adoption proceedings dismissed.
Friskopp filed her libel suit in September 2002, alleging she had been defamed in a letter written by Silverstein to the board of The Center, a San Diego gay and lesbian organization, and to the Gay and Lesbian Times, a San Diego newspaper that published it in December 2001.
In her letter, Silverstein complained that a forum held by the center to discuss the litigation had been one-sided in its support of second-parent adoptions. She added that she supported regular contact between the children and Friskopp, but “questioned whether this is wise,” because Friskopp, “a convicted perpetrator of domestic violence against me, has made repeated false accusations of child abuse and neglect against me” during the litigation.
Aaron, writing for the Court of Appeal, said the lawsuit was subject to Code of Civil Procedure Sec. 425.16, providing for the accelerated dismissal of strategic lawsuits against public participation, or SLAPPs. The suit qualifies, the justice explained, because it implicates Silverstein’s First Amendment rights to discuss a judicial proceeding and issues of public interest.
Because of that implication, Aaron explained, the burden was on Friskopp to show that she would probably prevail at trial, a showing she failed to make.
Aaron reasoned that Friskopp—as a result of her authorship of a book on the subject of lesbian relationships, her discussion of the subject on television, her involvement in the custody litigation, and her participation in a publicized “interfaith commitment” ceremony with Silverstein that the media was invited to cover—was a “limited purpose public figure.”
Accordingly, the jurist explained, she not only had to show that Silverstein’s statements were false, but that they were made with “constitutional malice”—older cases used the term “actual malice”—meaning that Silverstein made the statements with actual knowledge of their falsity or in reckless disregard of the truth.
The statement that Friskopp was “convicted” of domestic violence, while not true in the sense of a criminal conviction, appears not to have been made with malice, Aaron said. Noting that Silverstein was not a lawyer and did not ask for legal advice with regard to the contents of the letter, the justice said it was understandable that she would use the term “convicted” to refer to the issuance of the domestic violence restraining order.
Nor, Aaron went on to say, is it likely that Friskopp could show malice in the statement that she “made repeated false accusations of child abuse and neglect” against Silverstein.
The public record, the justice said, showed that Friskopp had in fact made allegations of abuse and neglect, and that they had been rejected as unfounded. Friskopp also failed, in her response to the anti-SLAPP motion, to offer competent evidence that Silverstein had abused or neglected the children, Aaron said.
The case is Annette F. v. Sharon S., 04 S.O.S. 3274.
Copyright 2004, Metropolitan News Company