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My last post was about a North Carolina case recognizing custody rights for a lesbian partner. Here’s a second opinion–same judges, same day–reaching a different conclusion. What that means is that the facts in the two cases fall on opposite sides of a crucial line–the line where some legal protections are available.

Keep in mind that in the first case, Mason v. Dwinnell, Mason wasn’t accorded the legal status of parent. She was seen to be a third party, a stranger to the child. As a general matter, a fit parent will always prevail over a non-parent in a custody action. A parent has constitutionally protected rights to make decisions about who her or his child spends time with. In that first case, the court concluded that Dwinnell’s actions in encouraging the relationship between Mason and the child were inconsistent with her subsequent assertion of parental rights. As a result, the court could award Mason part custody of the child.

In the second case Chatterjee gave birth to the child and thus was undoubtedly a legal parent. Her former partner, Estroff, was not a legal parent. The question was whether Chatterjee’s actions vis-a-vis Estroff were such that a court could award Estroff some custody or whether such an award would infringe on Chatterjee’s parental rights. In this instance, the court concluded that Chatterjee could indeed assert her parental rights and block any award to Estroff. Indeed, Chatterjee was entitled to terminate all contact between the children and Estroff.

Each case focuses on whether the acknowledged legal mother engaged in “conduct inconsistent with her constitutionally-protected status as a parent.” The judges are not considering conduct that might endanger a child, but rather are examining whether by willingly sharing parental responsibilities with another adult, the legal mother has limited her ability to later exclude that adult from contact with the child. It turns out that conduct is not the only relevant concern. The intention of the legal parent is also important. Thus, it becomes important that, whatever her actions, Chatterjee testified that she never intended to allow Estroff to be a parent.

Now drawing lines in law is always hard, and it can be extremely hard in cases involving children. But law is all about line-drawing and so one cannot object to that as a general matter. But I’ve said before (in a somewhat different context) that I find using intention to draw these lines–to determine parental status –very problematic. As most of us know all too well, intentions do not always match reality. Here, for example, Chatterjee’s actual intentions may have been inconsistent with her actual conduct. (I emphasize “may have been.” I have no actual knowledge of this case.) There’s no shame in that. But people, children and adults alike, live in a world shaped by conduct rather than by intentions. It is conduct (rather than intention) that has consequences, that allows relationships to form and to flourish. It seem to me far more useful for the law to follow from conduct rather than to probe the inner workings of the mind in pursuit of potentially-shifting, possibly inconsistent intentions.