Catching Up–Montana Lesbian Custody Case

Before I pick up the surrogacy thread again, I wanted to discuss this pending case.   It’s the regretably common lesbian v. lesbian “you’re not a parent” sort of case.  I’ve discussed a number of them here–I am reluctant to say this, but perhaps they really warrant their own tag?

Anyway, this one is from Montana.   The case has been argued before, but not yet decided by, the Montana Supreme Court.   News coverage of the argument here and here.    Michelle Kulstad and Barbara Maniaci were a lesbian couple.   They were together for ten years before the separated in 2006.   In 2001 Maniaci adopted a boy.  She adopted a girl in 2004.   Kulstad did not adopt the children (it’s doubtful that she could have done so under Montana law) but (alleged) acted as a parent to the children, as did Maniaci.

When the women separated, Kulstad asserted that she was entitled to continue her relationship with the children.   Essentially, she argued that she was a de facto parent or a functional parent and that the law should recognize this status.

Maniaci disagreed, asserting that she was the sole parent and hence should have sole control over who the children saw and spent time with.   Kulstad was not on that list of people.  

A trial judge agreed with Kulstad and Maniaci appealed the case to the Montana Supreme Court.  The court heard argument on May 1.   While the basic case is, as I said, sadly familiar, there are few noteworthy points here.

First, Maniaci is represented by the Alliance Defense Fund.   That’s a national legal group generally opposed to lesbian/gay rights.   The participation of this group underlines that the case isn’t simply about the facts, but about the broader legal principle.   Maniaci isn’t simply disputing what role Kulstad played.   (That would be about the facts.)  She’s asserting that no matter what role Kulstad played, Maniaci wins, because she’s the only legal parent as a matter of law.

(It’s probably no coincidence that Maniaci says she is no longer gay and is married to a man.   It’s not uncommon to see the Alliance Defense Fund weigh in on the side of no-longer-lesbian mothers.   I think the did that in the Vermont/Virginia case I’ve discussed here.)

Second, in making her argument, Maniaci employs some interesting language.   She identifies herself as the “natural mother” of the children.  That’s interesting because I think generally an adoptive mother is not a called a natural mother.   But there’s rhetorical power in invoking the “natural mother” language and so she does, even if it doesn’t particularly make sense here.    She then moves from that assertion to an invocation of parental rights–also rhetorically powerful.   She thus locates the case as one in which the state is trying to interfere with the freedom of a natural parent to make parental decisions as she sees fit.

Third, apparently both sides agree that this case has nothing to do with the parties’ lesbian relationship.   I suppose that is at once true and not true.   It’s true in this sense.   Kulstad’s claim is rooted in her relationship with the children.   She’s not asserting parental rights gained via her relationship with Maniaci.   Any rule adopted here would apply to a man who was involved with a woman who adopted and then behaved as Kulstad behaved.

But it is also not true.   If there parties were of different sexes they might have gotten married, in which case they might well have adopted the children jointly.   Or they might have conceived children via intercourse, in which case both would claim parenthood on other grounds.   Or (and I don’t know Montana law here, so I am only speculating) various other provisions of law might apply to a man’s claim.  And of course, the Alliance Defense Fund would not have taken an interest in the case.

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