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Twin boys at center of controversy between mothers who love them most

One boy likes tractors, big rigs and all things "heavy equipment." The other is more of a sports fan. He likes to play lacrosse, flag football and soccer. The first prefers Chevy. And the second is Built Ford Tough. One is right-handed. The other...

Malisa (Schnellbach) Hearn and her wife, Abby, right, stand in the kitchen of their Grand Forks, N.D. home on Wednesday, July 18, 2018. Nick Nelson / Forum News Service
Malisa (Schnellbach) Hearn and her wife, Abby (right), stand in the kitchen of their Grand Forks, N.D. home on Wednesday, July 18, 2018. Nick Nelson / Grand Forks Herald

One boy likes tractors, big rigs and all things "heavy equipment." The other is more of a sports fan. He likes to play lacrosse, flag football and soccer.

The first prefers Chevy. And the second is Built Ford Tough. One is right-handed. The other, a lefty. And one happily gulps his milk and apple juice while the other turns up his nose to both.

They may be typical 8-year-old boys with far-ranging tastes, but for all the ways they differ, these twin boys have at least one uncommon experience in common. They are the focus of a five-year court battle between the two Grand Forks women who love them most - their biological mother, Kaley Littlejohn, and a second "mama," Malisa (Schnellbach) Hearn, who says she and Littlejohn separated after a six-year relationship when the boys were just 3.

"From the moment we met in 2007, we were pretty much inseparable. We loved each other very much. At least that's how it seemed at the time," said Hearn, who's been fighting for legal parental rights since June 2013.

"We both wanted these children. Kaley and I were together. We made the children together. It was no accident," she said about the decision to start a family and the reason they both signed the donor paperwork at the cryogenic clinic. "At the end of the day, regardless of how we feel about each other, we should be able to co-parent together."

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Instead, Hearn claims Littlejohn has gone out of her way to make shared parenting difficult and has taken advantage of the fact the children were born before same-sex marriage even was declared legal in North Dakota and likewise before any associated family laws could be adjusted with gender-neutral terms.

And Hearn says that's just not right for a parent who's been in it from the beginning.

"Anyone who's ever been through it (intrauterine insemination), knows what it does to you, the roller coaster it puts you on. It's so emotional," she said. "We both wanted it so bad. You live and breathe for that purpose, and you forget about each other. It takes a lot out of your relationship when you're solely focused on making babies."

Even so, Hearn said she stuck by Littlejohn's side through all the ups and downs - through all the doctor's visits and fertility treatments, from the first insemination attempt that didn't take to the second that did only to be lost in a miscarriage 10 weeks later.

She also was there to celebrate the joy when a year and a half into the treatments Littlejohn became successfully pregnant with twins. She was there through the difficult and closely monitored pregnancy and again when the twins were born six weeks early. She was in it for the long haul, she said.

The Herald attempted to contact Littlejohn to ask her to tell her side of the story, but she declined to comment about either her relationship with Hearn or their legal history, which is documented in a 10-page Register of Actions in Grand Forks County Court.

Shortly after the Herald spoke with Littlejohn, her attorney, Patti Jensen of Galstad, Jensen & McCann in East Grand Forks, called the Herald to ask the reporter not to contact her client again.

"I represent a young mother. I believe any comment to the press when there is pending litigation under consideration by a court is inappropriate. And therefore, I have no substantive comment," Jensen said. "I believe any party to ongoing litigation that would solicit the involvement of the press could only be doing so for a self-serving motivation."

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'Social injustice'

Abby Hearn, Malisa's wife, says they feel they have exhausted nearly all possible routes to get parental rights for Malisa. Now, she only hopes a public dialogue might shed light on what they see as silent social injustice.

"From the moment I held the firstborn, I knew I was in love. You think nothing else can ever come between what you need to do to be the best person for that little human being you brought into this world," Malisa said. "Having parental rights is for the boys and for me. I'm not doing this for the notoriety. I don't want to be the poster child for this in North Dakota. I wouldn't want this for anybody. Nobody should have to fight to be a parent to their children. I just want to be treated like a normal person who had children and ended up in a situation where the relationship didn't work out and life moved on.

"But instead, I'm a lesbian. And now I'm in a situation where I have no rights to protect my children or myself. I'm being discriminated against because I happened to be in a same-sex relationship. This (injustice) has been so hidden, but this needs to come out. We're in a small area where nobody wants to touch anything because it might be taboo for their career. Law is not fair and balanced. Law is not the scales it pretends to be. The law is unjust for our children."

The Hearns say the case already has dragged on far too long and every day they wait for the courts and North Dakota law to catch up is more family time forever lost.

"Instead of looking at all the evidence, it's been mired in procedural red tape," Abby said of the ongoing case. "The kids will be 18 by the time this gets figured out."

No precedence

The U.S. Supreme Court just three years ago ruled state restrictions banning same-sex

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marriage were unconstitutional. And though Littlejohn and Hearn could not be legally married at the time the boys were born in 2009, the state's century code does separately address paternity in cases of assisted reproduction.

In part, the law states a man's failure to sign consent showing he intends to be the parent "does not preclude a finding of paternity if the woman and man, during the first two years of the child's life, resided together in the same household with the child and openly held the child out as their own."

Short of being a man and short of any gender-neutral revisions in state law to reflect the U.S. Supreme Court decision, Malisa says she fits the definition of "intended parent" in every way. Yet more than $70,000 deep in legal fees and five years after the first judge ordered family mediation after declaring he didn't want a "media circus," Malisa says she's still waiting for her day in court-the one in which she finally is given the chance to prove "paternity," or more aptly, that she was an "intended" parent who deserves all the same protections of a heterosexual parent.

Joy and sadness

The Hearns say they make the most of every minute they share with the boys but with every Sunday night's gut-wrenching goodbye, the emotional toll feels more relentless and more unforgiving.

Sitting on one end of a wrap-around sofa with family pictures of the boys decorating the walls and nearby shelves, Malisa's voice wavers as she talks about her love for the boys and the painful seven months she once endured without seeing them as she awaited a court ruling.

"Imagine your children dying and being gone from your life. You're mourning their loss, but you have no rights to them," she said. "They are blocks away, but you don't dare call them or contact them because you don't know if you'll be accused of harassing or stalking. I rode my bike 15 miles a day on The Greenway, streaming tears. I had to exhaust myself just to be able to sleep. Your children are just 20 feet from you, but you can't even talk to them."

Malisa, who says she pays regular child support to Littlejohn, does have some court-ordered visitation rights, yet she says the 108 hours she's allowed to spend with the boys each month is never enough, especially when grandparents and other relatives also want to share some together time.

She said legal parental rights would give her more say in their upbringing and in making decisions that affect their everyday lives. For instance, she wants to be able to go to their doctor appointments, take part in parent-teacher conferences and do simple things such as signing them up for activities.

Right now, she says she's blocked by a "need to know only" gate and is given only a glimpse of the boys' lives outside of her care. Legal parental rights from the state also could eliminate some of the unnecessary and unexpected roadblocks-such as not being included on the "OK to pick up kids from school list."

Malisa also wants to play a role in monitoring the boys' physical and mental health. She worries the stress of the current situation is adversely affecting their well-being.

"It's like she (Littlejohn) doesn't want anybody to know I exist. That's not fair to the boys. They shouldn't have to be stifled just because they have two moms and two homes," Malisa said. "They're being told they have to separate their life from here and there. No child should have to do that because two parents couldn't stay together. Life doesn't always work the way we want it to, but they should never be punished for it."

They will keep fighting no matter how long it takes, and Abby says there's no question the boys will grow up knowing "they were loved ... that Mama and Abby did everything they could for them."

"What does any parent want for their children but to be healthy, happy, stable individuals," Malisa added. "I will do anything for those boys, but how can I help them when I don't have any rights. I have an uphill battle."

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