Ex-partners in court

Before a standing-room-only audience Tuesday, the Utah Supreme Court heard oral arguments in the case of a former lesbian couple fighting over the future of a 3-year-old girl.

Members of both liberal and conservative camps flooded the court chambers. State Sen. Scott McCoy, D-Salt Lake, and Rep. Lavar Christensen, R-Draper, were present in a foreshadowing of what is expected to be one of the most heated political issues during the 2006 Legislature.

Cheryl Pike Barlow, the mother of the girl, says she has left her lesbian life and is now an evangelical Christian. Barlow said she does not want her former partner, Keri Lynne Jones, to have visitation with her daughter.

Last December, a district court judge ordered Barlow to allow Jones visitation, noting that when the couple was together, they held themselves out to be the parents of the girl with the intent of raising the girl together. Barlow has denied that she planned to raise the girl with Jones, although the girl's last name at birth was listed as Jones-Barlow.

In court Tuesday, Barlow's attorney, Frank Mylar, argued that a court should not be able to "second guess" the decision of a fit mother who is looking out for the best interests of her child.

"This case is about the rights of a natural mother to decide what she believes is best for her child," Mylar said, adding the court has "chained her" to a life she has tried to leave.

Mylar argued even live-in boyfriends are not entitled under the law to child visitation, only the biological father.

"So one episode of sexual intercourse," Justice Ronald Nehring asked, has greater legal standing than someone who stays to raise a child?

Mylar replied that Utah common law only recognizes the rights of a biological father.

Chief Justice Christine Durham took issue with the case law Mylar cited.

"You're talking about common law that is decades old here," Durham said, adding there is a need to understand common law that applies to "contemporary" circumstances.

With the number of children being born out of marriage nearing almost 50 percent, Durham said, there is a need to address issues of children raised in non-married households by two adults.

Justice Matthew Durrant also raised the issue of grandparents' rights to visit grandchildren, something with which the courts have struggled. Mylar pointed out U.S. Supreme Court rulings have established that a parent's fitness has to be in question before parental rights can be addressed to grandparents or non-relatives. In this case, Barlow's fitness as a mother has never been an issue, Mylar said.