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.
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