Montana Recognizes Lesbian Mother

Back in May I commented on a case (Kulstad v. Maniaci) that had been argued before the Montana Supreme Court.   It’s now been decided.   A good decision for lesbian families. 

I ran through the facts in my last post, but I’ll summarize them here, too.    Michelle Kulstad and Barbara Maniaci were a lesbian couple.  In February, 2001, the opportunity to adopt a child, LM,  arose.  Kulstad and Maniaci agreed they would parent the child together and participated in a home study in which it was clear that they planned to co-parent.  But as is the case in many states, only one of them could adopt the child and they decided that Maniaci would adopt. 

In 2003 Maniaci wanted to adopt a second child.  Kulstad was initially resistant, but it was clear that if the child were adopted, both women would co-parent.  In the end, Maniaci adopted AM. 

The parties lived and functioned as a family until 2006.  After they separated their relationship deteriorated substantially and they ended up litigating not only the parties rights to the children, but also a variety of property issues. 

The trial court determined that Kulstad had showed by clear and convincing evidence that she had a parent/child relationship with both children.   It also found that it would be harmful to the children to have the relationship with Kulstad severed.  In view of these findings it awarded Kulstad a parental interest in the children.  This included the right to share equally in major decisions effecting the children’s lives. 

Before the Montana Supreme Court, Maniaci asserted that granting Kulstad rights interfered with her constitutionally protected rights as a parent.   This is a fairly standard contention that would typically be met by an assertion that recognizing the rights of another parent is not constitutionally impermissible.   However, the Montana court took a different tack.   It seems that in 1999 Montana enacted a statute premised on the child’s constitutional rights granting recognition to a person who has established a parent-child relationship.  Thus, the recognition of Kulstad was defended as a recognition of the children’s rights.    In addition, Maniaci fostered Kulstad’s relationship with the children during their relationship. 

There’s also a notable concurrence by Justice James C. Nelson.  It seems that Maniaci was represented by attorneys from the Alliance Defense Fund, a legal entity that opposes lesbian and gay parental recognition is cases throughout the country.   In this case, however, the ADF denied that its participation had any connection to its general opposition to lesbian and gay family recognition.  Justice Nelson is skeptical of this denial and writes separately to lament discrimination against lesbians and gay men.  

And finally Justice Jim Rice dissents.  In his view, the majority has undermined the constitutional rights of fit parents generally, rendering them vulnerable to claims of third parties.   In his view the right of a child is no more than the mirror image of the right of a parent.  Thus, invocation of a child’s rights cannot lead to recognition of rights in someone not already recognized as a parent. 

It’s a lengthy opinion and warrants a bit more consideration than I’ve given it here.  For the moment, a couple of things strike me. 

First, Kulstad is left with “a parental interest.”  I’m not sure what that is or what it means. Is Kulstad a legal parent?   She has an equal voice in decision making, which suggests some equality with Maniaci.   But it simply isn’t clear to me. 

Second, Maniaci repeatedly invokes (and the court appears to accept) her rights as “a natural parent.”   This is striking to me because I have always taken “natural parent” to mean a either the man who has a genetic relationship with the child or the woman who gives birth andhas a genetic relationship.    In particular, I thought “natural parent” stood in opposition to “adoptive parent” and Maniaci is clearly an adoptive parent.   This suggests that, at least in Montana, “natural parent” has a broader meaning than I thought.  It makes me wonder what other sorts of parents there are, and whether there is yet another term used for the biologically related people who might give the child up for adoption.

One response to “Montana Recognizes Lesbian Mother

  1. Well, first the completely unlegal, personal and not professional opinion: yeah for the child, big thumbs up for the integrity and courage of Nelson and an extra big “bigot” for the ADF and for Rice and his transparent, political and repulsive view. Maniaci just repulses me and pisses me off so I don’t want to get started on her.

    Now professionally: as to the upholding of the statute recognizing a third party parental interest, I look with interest to a Gunwall (?) solid defense of any states trying to springboard off this in their right to expand their constitutional rights via caselaw rule establishing that results in contradiction to the effect of the Sup Ct’s Gonzalez ruling (lesbian mother, grandparent, I see a slippery slope)–I love that we are talking now about the rights of MINORS, especially in the aftermath of what is essentially a contractually originated impact upon their life in which they had no say and as minors, wouldn’t be able to enter into anyways (ok, my mind is going a bunch of different ways at once, so many other issues this opens up!) I agree with your definition of natural parent. My humble posit to you is that as to parental rights, I have always taken them to mean to be the same rights given to natural parents as incorporated into the rights of the adoptive parents by virtue of the adoption. That is how the statutes and caselaw interpreting in our state look at it but I do not know Montana’s so I guess I would want to review it before venturing an opinion as to there. Thanks for posting the case and blogging your great thoughts!

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s