The Utah Supreme Court has ruled that common law alone cannot grant a domestic partner who is not the biological parent of a child the right to visit that child, even if that partner acted as a parent while in the relationship.
The decision is being hailed by conservative groups and supporters of strong parental rights, while others have described it as a "deep and severe loss" for nontraditional families.
Friday's ruling comes more than 18 months after oral arguments were heard in this one-of-a-kind case for Utah. The former same-sex partner of a biological mother has fought for the right to visit the little girl the couple had planned to rear together. The women separated when the girl was 2 years old.
A district court judge initially ruled that Keri Lynne Jones had a right to visitation through a common-law concept known as "in loco parentis" which is Latin for "in the place of a parent." The lower court found it was in the girl's best interest to continue to have contact with Jones, despite the protest of mother and former partner, Cheryl Pike Barlow.
Barlow, a born-again evangelical Christian who claims she is no longer a lesbian, argued that as a fit biological parent, she had a right to decide those to whom her child is exposed. Barlow argued to the Utah Supreme Court that she did not want her daughter exposed to the same-sex lifestyle.
In November 2000, Barlow and Jones decided to enter into a civil union in Vermont and to raise children together. Barlow conceived a child through artificial insemination and, in October 2001, gave birth to a baby girl. The birth certificate listed the child's surname as "Jones Barlow" and, for the first two years of the girl's life, both women cared for her. In May 2002, both women obtained a court order designating both of them as co-guardians of the child.
When their relationship ended in October 2003, however, Barlow petitioned the court again to have Jones removed as co-guardian, which the court granted.
Jones then brought suit against Barlow, seeking court-ordered visitation of the child. A district judge ruled that because the couple had planned to raise the child together and Jones had been a parental figure in the girl's life, she had standing to seek visitation and the court ordered such.
Barlow appealed to the Utah Supreme Court. Since then, the case has sparked debate among the community and prompted legislative attempts to prevent any similar occurrences in Utah.
The Senate is expected to hear debate on a bill early next week that would restrict a designation of "in loco parentis" against a legal parent's wishes. Sponsored by Sen. Curt Bramble, R-Provo, the bill is a reincarnation of one approved last year but vetoed by Gov. Jon Huntsman Jr. amid concerns that it would affect existing custodial relationships for stepparents and grandparents.
Bramble's bill, SB248, states it is not intended to affect established rights for those two groups, gaining it the approval of the governor's office.
However, Friday's ruling may obviate the need for legislation, Bramble said. "If it's consistent with what we're trying to do in the statute, the bill may not be necessary."
Jones' attorney, Lauren Barros, who has testified in legislative committees on the bill, said if changes were made to the bill, lawmakers could fix the problem by giving same-sex partners legal rights.
As for the ruling, Barros said the Supreme Court had "trashed a long-standing doctrine" used to support stepparents' rights to avoid applying it to gay people.
In Friday's split ruling, four of the five Supreme Court justices sided with Barlow, the biological mother, indicating that Utah law does not afford Jones standing to seek visitation and that "in loco parentis," as a common law concept, alone is not enough.
"We declined to extend the common law doctrine of in loco parentis to create standing where it does not arise out of statute," Justice Jill Parrish wrote in the majority decision. "We accordingly overturn the trial court's grant of visitation rights and hold that the common law doctrine of in loco parentis does not independently grant standing to seek visitation against the wishes of a fit legal parent."
The court noted that the common law doctrine did not "convey perpetual rights that survive the termination of the parentlike relationship."
In a lengthy dissenting opinion, Chief Justice Christine Durham disagreed with her colleagues and noted that for all intents and purposes, Jones should be considered a family member, even though Utah law lacks a specific definition for her. Durham compared Utah's law with that of Vermont, where the couple obtained a civil union, which recognizes Jones as "an immediate family member."
Durham points out that the Utah Legislature has yet to address such relationships, and that only leads to harming children caught in the middle without the benefit of a clear law.
"A child's rights and best interests do not change depending on whether his or her parental figures are recognized as parents under the law or whether they are simply parents in fact," Durham wrote.
The chief justice noted Utah law needs to recognize "de facto" parents in common law as having rights to be in the lives of children. "While this case is, in part, about parental rights, it is also about whether children in nontraditional families, with nontraditional but nonetheless real parents, are entitled to have their interests addressed just as if they had been born into traditional families," Durham wrote.
Jones told the Deseret Morning News she is devastated by the ruling, for herself and for nontraditional couples who do not have clarity in the law. Jones said no matter how much the Utah Legislature and Utah Supreme Court refuse to acknowledge such relation- ships, they do exist.
"We're going to have situations like this, and instead of just writing them away,. we have to find another way to deal with it," Jones said. She lauded Durham's dissenting opinion as pointing out a need to address the situation in the law for the sake of the children involved.
Barlow's attorney, Frank Mylar, called Friday's ruling a victory for rights of parents to decide to whom their children will be exposed. "I just thank God that the Utah Supreme Court in its ruling has enabled a fit parent to be able to protect her child from a harmful relationship," Mylar said.
Barlow has been under court order to schedule visitation with Jones, but has resisted the court's orders and has moved with her daughter to Texas.Friday's ruling will negate the district court's visitation order, which had also ordered Jones to pay child support.
Contributing: Angie Welling E-mail: firstname.lastname@example.org