I have met and heard the tragic stories of many parents. PA is a function, by and large, of a custodial ex-partner, although some alienation can start while the couple is still together.

This blog is a story of experiences and observations of dysfunctional Family Law (FLAW), an arena pitting parent against parent, with children as the prize. Due to the gender bias in Family Law, that I have observed, this Blog has evolved from a focus solely on PA to one of the broader Family/Children's Rights area and the impact of Feminist mythology on Canadian Jurisprudence and the Divorce Industry.

Wednesday, October 7, 2009

Montana Supreme Court upholds parental rights in Missoula same-sex case

This case has been in the news before and is interesting in that it involves lesbians. Its impact is profound as it can also be interpreted that dads have the same rights as a true natural parent instead of being marginalized. It's ironic it took a woman to cause judges to do this. I'm suggesting this is quite a precedent setting decision for all parents in Montana - and it may be used as a precedent elsewhere.MJM

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HELENA - The Montana Supreme Court Tuesday upheld parental rights for a Missoula woman who'd been part of a same-sex couple that cared for two adopted children, saying she's entitled to joint custody of the kids.

Supporters of the 6-1 decision hailed it as a victory for all parents, regardless of their marital status or sexual orientation.

"This is a victory for families in all shapes, sizes and colors," said Betsy Griffing, legal director for the American Civil Liberties Union of Montana.

Justice James Nelson also issued a special concurrence, in which he wrote a blistering denunciation of discrimination against homosexuals.

"Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry," he wrote. "Lesbian and gay Montanans must not be forced to fight to marry, to raise their children and to live with the same dignity that is accorded heterosexuals."

Yet opponents said the ruling had little to do with the rights of same-sex couples or gays and lesbians, and instead opens the door to challenges of parents' rights to raise their own children.

"Now, even parents who are fit and capable ... are potentially subject to the claims of third parties for rights to their children," wrote Justice Jim Rice, the sole dissenting vote on the Supreme Court decision. "Consequences of geometric proportion will fall in the future upon many fit parents."

Jeff Laszloffy, president of the Montana Family Foundation, a conservative social group that says it focuses on "strengthening families across Montana," said the court "simply bent existing law to reach a predetermined social position. ... This is an egregious decision."

A former live-in lover, no matter what sex, may now attempt to claim parental rights to children against the wishes of the legal parent, after the parent has ended the relationship with the lover, Laszloffy said.

The case before the Supreme Court involved a female couple who, while not legally married, had exchanged rings, lived together in near Missoula for 10 years and acted as parents to a young boy and girl.

The two children had been adopted by Barbara Maniaci, a chiropractor in Clinton, while she had been involved in a lesbian relationship with Michelle Kulstad. After the couple separated in 2006, Kulstad sued to maintain parental rights to the children and for an interest in the property the two women had shared.

District Judge Ed McLean of Missoula ruled in Kulstad's favor last year after a trial, and Maniaci, who has since married a man, appealed to the high court.

Justice Brian Morris, who wrote Tuesday's majority opinion, said state law allows a non-parent to seek a "parenting interest" in a child if the person has established a child-parent relationship.

He said the District Court properly ruled that Kulstad had established that relationship, and therefore was entitled to joint custody of the children. Maniaci, the legally adoptive parent of the children, also had "ceded her exclusive parenting authority" to Kulstad during their relationship, by treating Kulstad as an equal parenting partner, Morris said.

"Maniaci cannot rewrite the history of the fact that she and Kulstad lived together for more than 10 years and jointly raised the minor children in the same household," Morris wrote.

Kulstad appeared at a news conference Tuesday outside the Supreme Court, saying she's grateful that the court recognized her parental rights.

"I want what every parent wants," Kulstad said. "I want to love my children and care for them. I am looking forward to being in their lives for the rest of my life, to see them graduate from high school, get married and have children of their own."

The boy, 9, and the girl, 6, live with Maniaci and her husband.

In his dissent, Rice said the court should have struck down the law that allows nonparents to assert parental rights without proving that the "natural parent" - in this case, Maniaci - is an unfit parent.

"This statute ... invades the constitutionally protected natural parent-child relationship without first requiring termination of the parent's interests," he wrote.

Rice said Tuesday's ruling goes against former precedent, which said a natural parent can't be denied custody of their children unless abuse or neglect is shown.

The case attracted attention from national and regional groups, which filed friend of the court arguments with the Supreme Court. They included the conservative Pacific Justice Institute, and, on the side of Kulstad, the National Association of Social Workers and the Northwest Women's Law Center, which has been active in women's rights cases involving lesbian couples.

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