Lesbian Mother/Grandparent Visitation, II

In my last post, I discussed a recent Indiana case at some length, outlining both basic facts and law.  You’ll probably be better off reading that post first.    Here I want to talk about what interests me about the opinion. 

This is one of those cases that illustrates exactly how important it is to be recognized in law as a parent to the child.   The mother prevails not because the court investigates which household would be the best place for the child to live and decides it is her household, but rather because she is a parent and so her decision about what is best is entitled to respect.     

The inquiry about which household is better—which generally lies at the core of a “best interests of the child” analysis—leaves the presiding judge an enormous amount of discretion to determine what she/he thinks is better.   This can be particularly treacherous a parent who does not conform to traditional model–a single mother, a lesbian mother, or a single lesbian mother, as BLH (the mother here) once was.   It’s not hard to imagine a conservative judge concluding that it’s better for a child to have a married mother and father.   (This is just what the trial court in a recent West Virginia case concluded.)   But a parent is shielded from that inquiry by invoking parental rights.   

Only another legally recognized parent can challenge the mother here on an equal footing.   There is one such person, I gather.  That is TY, identified by the court as the father of the child.   Yet TY has had absolutely no relationship with the child as far as we can tell.   All of the other players on the stage (the grandparents and the new partner) have more substantial relationships with the child.   Yet he gains a superior legal status they cannot have, purely by virtue of having provided the DNA to create the child, not as a donor but as a man who had intercourse with BLH.  

While the privileged status accorded TY here has no impact on the outcome of the case, it nevertheless strikes me as somewhat absurd.   It seems to me that in any rational family law system, the claims of those individuals who have demonstrated some commitment to the child would be entitled to somewhat greater respect than those of a person with the lack of interest demonstrated by TY> 

The next questions that comes to my mind is whether the grandparents could have asserted rights as parents.   While it might seem impossible to be both parent and grandparent, it’s really not.  Grandparents may take full or substantial responsibility for raising their grandchildren and when they do, they may meet the qualifications as a de facto parent.    

Here is where the question of timing might come in.   There was a period of time in this case where the child lived with the grandparents while the grandparents were primary caretakers.   Suppose the grandparents had sought recognition as de facto parents during the time that?   There are jurisdictions in which they might have presented a plausible case.  Indeed, I think had this case arisen in a different context, I might have argued they should be recognized as parents.  

Had they done this, it would have dramatically altered the contours of the court’s inquiry.  Instead of deferring to BLH’s wishes, a court would have compared the grandparents and BLH.   And it would have operated with a presumption that each party was entitled to maintain a relationship with the child.  

And finally, once can consider the status of KW.   By the time the case came to trial, KW might have been in a position to invoke the de facto parent doctrine.  (Again, I say this not with regard particularly to the law of Indiana, about which I do not have special expertise, but as an academic thinking about family law generally.) Were KW and BLH to separate, I might well argue that each is a parent to CLH and hence entitled to equal status in determining the custody of the child. 

Was there a time when the grandparents, KW and BLH were all parents to the child?  Did the grandparents move out of that role as KW move into that role?   How quickly can these roles shift, anyway?   These are the timing questions that perplex me and that inevitably must be answered if you apply a de facto parent test.

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