Tuesday, October 6, 2009

Montana Supreme Court protects children with two same-sex parents

The Montana Supreme Court has affirmed a trial court decision granting a “parental interest” to a lesbian mother who co-parented two children legally adopted only by her partner. The case, Kulstad v. Maniaci, is a strong and unequivocal victory for recognizing the families that same-sex couples form. The mother who adopted the children, Barbara Maniaci, was represented by the Alliance Defense Fund. As I’ve noted elsewhere, that organization devotes substantial resources to opposing the rights of children to maintain relationships with both of their functional parents when a same-sex couples splits up.

L.M. came to live with Michelle Kulstad and Barbara Maniaci through a private adoption arrangement in February 2001. A lawyer told the couple only one of them could adopt, and Barbara became the adoptive parent. They agreed to co-parent, however, and made that clear to the social worker who wrote both pre-adoptive and post-adoptive reports on the family. In 2003, Barbara wanted to adopt another child, and, although Michelle did not, the couple participated together in a home study to adopt another child and Barbara told the social worker that the couple would co-parent.

The couple did co-parent. The court found that the two women “provided for the children’s physical, psychological, and developmental needs much like any other two-parent family.”

The couple split up in 2006. The trial court allowed Michelle’s claim to go forward and there was a trial in 2008 on whether she had a “parental interest” and was entitled to time with the children under a parenting plan.

A Montana statute explicitly allows a nonparent to seek a parental interest if the person has established a child-parent relationship, it is in the child’s best interests to continue that relationship, and if the parent has acted “contrary to the child-parent relationship.” The Montana Supreme Court approved the trial court’s interpretation that this last element was met because Barbara acted contrary to her own exclusive child-parent relationship when she ceded her exclusive parenting authority and instead jointly parented with Michelle.

Barbara made numerous representations about the family’s life that the court did not believe, including her assertion that she had lied when she told social workers that the couple would be raising the child together. Rejecting every one of her contentions, the Montana Supreme Court stated that “[Barbara] cannot rewrite the history of the fact that she and [Michelle] lived together for more than 10 years and jointly raised the minor children in the same household.” Barbara also argued that Michelle could not be considered in loco parentis unless she acted as parent to the exclusion of Barbara. The court rejected this.

The Montana Supreme Court credited the trial court’s findings: that Barbara had acted inconsistently with the position that she was the only one with a child-parent relationship; that Michelle did have a child-parent relationship with the children; that, as the mental health experts testified, it was in the children’s best interests to continue their child-parent relationship with Michelle.

Last year I wrote about a devastating opinion from the Maryland Court of Appeals eliminating from a child’s life the parent who had not legally adopted her. The Montana Supreme Court referenced that ruling and noted that Montana has a statute on the subject, which Maryland lacks. Hear that Maryland? You need to pass a statute so that your children of same-sex parents get the same emotional and financial security that the children of Montana now have.

Six justices joined the majority opinion. A seventh, James C. Nelson, concurred, writing a separate opinion championing the rights of lesbians and gay men to form families and raise children. He points out that the Alliance Defense Fund and two amici – Montana Family Foundation and Pacific Justice Institute -- claimed that sexual orientation played no part in their involvement in the case. He found this claim “belied by each of these participants’ foundational beliefs opposing homosexuality.” In some of the strongest and most passionate language I have ever read in a court opinion, Justice Nelson writes as follows:

I am convinced that until our courts, as a matter of law, accept homosexuals as equal participants with heterosexuals in our society, each person with exactly the same civil and natural rights, lesbian and gay citizens will continue to suffer homophobic discrimination. Regrettably, this sort of discrimination is both socially acceptable and politically popular. Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry. And, whether rationalized on the basis of majoritarian morality, partisan ideology, or religious tenets, homophobic discrimination is still bigotry. It cannot be justified; it cannot be legalized; it cannot be constitutionalized…

Lesbian and gay Montanans must not be forced to fight to marry, to raise their children, and to live with the same dignity that is accorded heterosexuals. That lesbian and gay people still must fight for their fundamental rights is antithetical to the core values of [the Montana Constitution] and speaks, in unfortunate clarity, of a prevalent societal cancer grounded in bigotry and hate.


One judge dissented, believing the court was opening the door too wide to challenges to the rights of parents to raise their children. Although there is some legitimacy in protecting parents’ rights (which I have long argued can be done by defining parent to include individuals like Michelle), the dissenting judge betrays a certain hysteria by discussing same-sex couples and polyamory in the same paragraph. When he posits the bogeyman of three or four adults developing parental relationships with children, he apparently fails to notice that in this era of blended families many children do, in fact, have multiple parental relationships.

Thanks to Montana attorney Jim Reynolds, who wrote a friend of the court brief on behalf of several law professors (including me!) in support of the trial court's ruling. The ACLU of Montana, with the help of the ACLU Lesbian, Gay, Bisexual and Transgender Project, represented Michelle.