NCLR attorney Kate Kendall argued the case before the Utah Supreme Court PHOTO BY JEFF SINGER

Last Friday, four out of five justices on the Utah Supreme Court ruled that a non-biological parent has absolutely no legal standing for a continuing relationship with a child after a parental break-up. This wasn’t simply a matter of denying parental rights to the lesbian mother in question. Overturning a trial court decision that acknowledged the relationship between mother and child, the court said that a non-biological parent does not even have the legal standing to bring up so much as the issue of visitation, much less custody.

In doing so, the justices were obliged to, um, “clarify” one of their own previous decisions that appeared to recognize a status for individuals who have been acting in a parental role. Second, the justices basically ignored the rights of the children in these cases, rights that under settled family law take precedence over the rights of adults in parenting disputes. Third, they simplified the complex but instructive guidelines in the U.S. Supreme Court’s only recent parenting decision to serve their own ends.

The case was brought by the National Center for Lesbian Rights, and argued by no less a lawyer than NCLR Executive Director Kate Kendell, a Utah native herself, and one of our most eloquent legal advocates. The plaintiff, Keri Jones, was trying to maintain her tie to the daughter she helped raise from birth to the age of two with her former partner Cheryl Barlow. After the women separated, Barlow had taken their daughter to Texas and become a born again Christian.

You’ve heard this scenario many times. And happily, you have also seen court after court rule that a mother or father may not unilaterally deprive a child of the relationship he or she has developed with a second parent. Utah has gone in the other direction.

Most courts when faced with these situations focus on the criteria for deciding when a parent is a parent. After all, no one would want courts to open the door for a casual girlfriend or friend of the family to be able to sue a legal parent for visitation or custody. But while the Utah majority claimed that this kind of evaluation was far too cumbersome, other courts have found it fairly simple.

First, the legal parent must have invited the second parent to share parenting responsibilities. Second, the second parent must have been a part of the household and provided the kind of care that parents provide without thought of recompense. Third, the child and the parent must have established a parent-child emotional bond.

In this instance, the court never even came close to making this kind of assessment. In fact, the court ruled that no one outside the narrow context of a legal stepparent or blood relative could ever bring a visitation or custody challenge to the bar. Not only did the majority decline to recognize the possibility that what we call a “de facto parent” might be an important status in the state of Utah, but it actually limited its consideration to a lower level of parent-like people, those who stand “in loco parentis,” meaning those who are temporarily acting in a parental role. Since Jones was no longer acting as a parent, the court ruled, even that status was denied her.

And why didn’t the court at the very least rule that individuals like Jones should have their day in court and get the chance to prove that their child’s best interests would be served by continuing the relationship? Because, the majority announced nonsensically, legal parents could then be burdened by extensive litigation and fact finding “from every unmentioned class of nonparent” that would undermine the “traditional gate-keeping function of rules of standing.”

This ridiculous exaggeration is belied by case law around the country.

So what about the best interest of the child? In our system, the best interest of the child rules family law and all other considerations give way to its preeminence. Yet here, the Utah majority ruled that it is understood that the legal parent, not the court, is the best judge of what will be in his or her child’s best interest.

Quite rightly, legal parents have fairly sacrosanct constitutional rights in this country. But in other jurisdictions, Jones would also be considered a legal parent. Here, she has no chance to advocate for those constitutional rights. Further, when the U.S. Supreme Court upheld the rights of parents in a fractured decision seven years ago, they specifically placed their opinion in the context of a sweeping Washington state law that allowed virtually anyone to sue for visitation. But parents’ rights, the Court made clear, did not preclude courts from weighing the best interests of a child in family law disputes.

In their zeal to distance themselves from giving aid and comfort to a lesbian parent, the Utah court made a distinction between this case, and a prior decision that used the “in loco parentis” status to recognize a stepfather for the purpose of standing. The earlier decision granted legal standing to a person “who stands in the relationship of parent, grandparent or other relative,” to a child. That language, the court explained tediously, was an interpretation of a statute, not an interpretation of common law.   

 And how about this comment from another previous ruling? “It is conceivable that persons who are not related by blood or marriage, although not presumptively entitled to standing, could show that they had a relationship with the child that would warrant a grant of standing.” That remark, the court said last week, was “a musing on the potential outcome of a hypothetical situation,” which is “not binding upon this court.”
Writing in dissent, Chief Justice Christine M Durham cut to the heart of the legal issues and the reality of the changing American family.
“While this case is in part about parental rights,” she wrote, “it is also about whether children in non-traditional families, with non-traditional but nevertheless real parents, are entitled to have their issues addressed just as if they had been born into traditional families.
“The child in this case is the product of a same-sex relationship, but she could have just as easily come from a more traditional one. Her opportunity to have the courts determine whether visitation with one of her parents is important to her present and long-term best interests should not be foreclosed
. To deny the forum of the courts for the resolution of children’s issues in non-traditional contexts would be to deny those children the protections afforded to all other children. This is contrary to ‘the public welfare and the true interests of justice.’”q