News in Brief: Lesbian Mothers Cannot Rely on Agreements in Utah

Just a quick note about a recent case from Utah.  The (very short) decision is here and you can also read about it in the Mombian blog.   We don’t have the benefit of the specific facts in the opinion, but Mombian has a good discussion.     The unsuccessful lesbian mother also maintains a blog, the Lost Mom.  

Gena Edvalson and Jana Dickson had a child together.   Dickson gave birtht to a son concieved through assisted insemination.    Utah is not a state that would permit the women to a second parent adoption.   This means that inevitably Dickson (having given birth) was a legal parent while Edvalson was not. 

Likely in an effort to protect Edvalson, the two women executed an co-parenting agreement–really akin to a contract–stating that Edvalson would have rights as a parent.    When the boy was three, the couple separated.   Dickson became involved with a man and sought to terminate the child’s contact with Edvalson.   Edvalson sued, relying on the co-parenting agreement. 

Unsurprisingly, the Utah court rejected Edvalson’s claim.  I say “unsurprisingly” for two substantial hurdles stood in her path.  

First, Dickson is a legal parent and Edvalson is not.   The court’s very brief opinion devotes perhaps half its length to an affirmation of parental rights.   These are rights that can serve lesbian mothers well in some instances (see that recent Indiana case) but completely frustrate them in others.    Parents can generally exclude non-parents from the lives of their children and this is the power that Dickson relied on

Second, while parenting agreements may be commonly used, they are rarely if ever legally effective.   (I cannot recall an instance in which a court has given them force, though I’m not prepared to say it has never happened.)  Just as you cannot buy or sell a child, you cannot contract to give or receive rights to be a parent.   These are really sides of the same coin.

In some ways, this case illustrates a fundamental difficulty facing lesbian and gay parents these days. If Dickson and Edvalson had lived in California or Washington or Massachusetts, say, then Edvalson’s rights could have been effectively protected.   But of course, not all lesbian and gay parents have the good fortune to live in states that will recognize their parental rights and not all want to or are able to move to such states.    Edvalson didn’t lose because she failed to take some action she could have taken in Utah.   She lost because Utah will not recognize a second mother, even where this is the reality of a child’s life.               

It’s important to remember that for all the gains in some states, the legal situation of lesbian and gay parents and their children in other states remains quite dismal.   I fear it will be a long time before there is uniform recognition of families across the country.


5 responses to “News in Brief: Lesbian Mothers Cannot Rely on Agreements in Utah

  1. No one can sign rights to a child over to a non-biological partners without complying with strict federal and state civil rights procedures.

    Step parents do not physical or legal custody, they have to comply with state and federal laws, and only have the “real” or “biological” parents have waived or lost their rights in a court of law following due process.

    Neither heterosexual or homosexual parents have the rights to sign a “contract” to give a child away. Children are not property.

    • Your comment emphasizes a very important point. There may be some value to drawing up agreements about children (it makes clear what people’s expectations are and this can help avoid misunderstanding) but it does not provide actual legal protection. It’s important that people understand that so they can correctly assess their legal positions.

      At the same time, I wonder if you mean to draw and equivilance between “real” and “biological” parents? This is not warranted or helpful really. Adoptive parents are “real” parents in the sense you mean, I think. At least, they cannot sign over the rights they have via contract. And some people one might identify as “biological” parents (sperm donors, egg donors, perhaps surrogates?) can indeed sign over whatever rights they have because they are not considered to be parents.

      I’d rephrase your statement this way: Legal parents have rights that cannot be contracted away. The question, then, is who counts as a legal parent. That’s the central question I’m trying to work through on this blog.

      To return to the Utah case, it’s fairly certain that in some states, Edvalson would be considered a legal parent (which I think might make her a “real” parent) and so would not need to rely on the contract argument at all. It’s curious to think that one might be a legal parent in some states but not in others, yet it is clearly the current state of affairs.

      I think the use of the word “real” makes it harder to

  2. The question about what parental “rights” a person can acquire or extinguish by contract rests on the insight that parenthood, like marriage and property ownership, consists of a bundle of sticks, or discrete legal relationships: rights, duties, powers, etc. Statutory status as a legal parent automatically creates all these relationships between parents, between parents and children, and between parents, children, and the rest of the world. People who are denied the statutory status can try to create a bundle of their own that duplicates, to the extent possible, all the “standard” relationships (or not, if they find that some of them are unwanted). The scope of that creative power is, to some extent, what is at stake in cases such as this. In particular, the large scale question is how many of these relationships can be created by the consent of the “new” parent and a legally recognized parent. Will that agreement, even if enforceable or legally effective between the two people who formed it, be legally effective (1) as to the child and (2) as to the rest of the world. It may well be that some of the twigs in the bundle that the parties try to create by agreement will survive even if a court decides that others will not. So, for example, while a court might hold (for whatever reason) that a parent-by-contract may not acquire custodial rights that would bind the child, it may nevertheless find that the parent-by-contract became bound by her promise of support and that she has rights against the other contracting party. It is perhaps a better litigation strategy in states that are hostile to parenting by contract to disintegrate the agreement into more specific elements, some of which may be found enforceable, rather than to try to go for the entire bundle that is called parenthood.
    Is it your understanding that the Utah decision means that a parent’s “property” right to control the custody of the child is contractually inalienable?


  3. All I see in all these discussions is parental RIGHTS. Shouldn’t there be more focus on the rights of the children involved – not to be the focus of ongoing soul destroying litigation!

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