[Article] Maine non-biological lesbian mom wins parental rights

yellum

http://www.pressherald.com/news/state/040407custody.shtml

A gay woman from Freeport is a "de facto parent" of her former partner's biological child and has full parental rights and responsibilities, the Maine Supreme Judicial Court decided Tuesday.

The court ruled that "adults who have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child's life" can in some cases be recognized as legal parents, regardless of their sexual orientation or family relationship.

Their role in raising children can last, the court said, even if the adults' relationship ends.

All seven justices agreed with the outcome in two concurring opinions.

The decision goes further than ever to define the legal status in Maine of same-sex partners who raise children together, said advocates for gay and lesbian civil rights. It puts Maine in a small group of states whose courts recognize a bond between an adult and a child that does not result from a biological relationship or legal adoption.

"It's a very child-centered decision," said Mary Bonauto of Boston-based Gay & Lesbian Advocates & Defenders. "When you have two parents that can't agree, courts do what courts always do and make decisions on what is in the best interest of the child."

Bonauto was one of the lawyers who made the winning argument before the Maine Supreme Judicial Court. She was also the lead attorney in the case that led the Massachusetts Supreme Court to rule in favor of gay marriage, and the Vermont Supreme Court to legalize civil unions for same-sex couples.

She said the Maine case also advances the legal status of same-sex couples.

In the decision issued Tuesday, the justices said that a woman, known in court documents as "C.E.W.," was a "de facto parent" of a 9-year-old boy, and had all the rights and responsibilities of motherhood, even though she was no longer involved with the boy's biological mother.

According to the decision, the two women started living together in 1992 and agreed that C.E.W.'s partner would conceive a child through artificial insemination.

The women took each other's last names and signed a joint parenting agreement. The boy was born in 1994.

In February 1999, the couple separated when the biological mother left their home. They signed a second parenting agreement sharing the parental costs and decisions, and agreed that the boy's primary residence and visitations would be determined by the courts.

In November 2000, the biological mother filed a complaint in Superior Court arguing that C.E.W. should not be considered a parent. She claimed that, under Maine law, an individual who is not related to a child by birth or adoption can never be eligible for parental rights unless the legal parent puts the child in jeopardy.

The Superior Court judge disagreed, and the biological mother appealed.

A group of professional organizations and child welfare providers, including the Maine Psychological Association, the National Association of Social Workers and the Maine Children's Alliance, filed a brief in support of C.E.W.

They said research showed that children in families with a non-biological parent form the same kind of bonds they have with a birth parent.

"Families with same-sex parents function virtually identically to families with opposite sex parents," the brief said. "Children of same-sex parents fare as well as children of heterosexual parents in mental health, psychological and social adjustment, and all other measures of adjustment and well-being."

Justice Jon Levy, writing for a five-member majority of the Maine Supreme Judicial Court, said that custody and other decisions should be governed by what is in the best interest of the boy, not his relationship to the other family members.

"The child, now age 9, has bonded with C.E.W. as his parent," Levy wrote. "The undisputed material facts suggest that the child is both happy and healthy."

In her brief, the biological mother conceded that C.E.W. was a de facto parent to the boy, so the court did not have to determine her relationship, Levy wrote.

While leaving the question of who can be a de facto parent open, Levy said, "This term is ultimately defined . . . by the Legislature or the courts in the future, it must surely be limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child's life."

Justices Robert Clifford and Paul Rudman wrote a concurring opinion, saying that a de facto parent can have full rights or limited rights. They said each situation should be determined individually in the lower courts.

Bonauto said the ruling does not give same-sex partners the same rights as married couples, who have full parental rights when they divorce regardless of their commitment to their children. De facto parent status "is not an easy test to meet," she said.

"(But) at least now, gay and lesbian parents will have some opportunity to show that they have been responsible," she said. "They can say, 'I have cared for this child. Even though my relationship is over, my relationship with this child is not over.' "

Yoda

Good for her! And good for the kid, too.