The Montana Supreme Court has awarded custody of two children to the non-biological partner of a former lesbian couple, when the actual adoptive mother of the children went “straight.”

Non-married relationships with children have become much more common recently, with some areas having as many as 70 percent of the children born out of wedlock. Non-married couplings where there are existing children biologically or legally related to only one of the parties are also increasing rapidly. A small, but significant, subset of these mixed custody relationships are gay and lesbian couplings, where only one partner often has biological connection to the child.

In this new era of relationships which come in so many permutations other than marriage, and with these relationships breaking up at breakneck speed, family courts are overwhelmed with new challenges that would have been unimaginable in the recent past.

Into this milieu came a coupling which could not help but push the boundaries when they broke up. Barbara Maniaci was the adoptive mother of a nine-year-old boy and a six-year-old girl. She was in a 10-year lesbian relationship with Michelle Kulstad, which ended in 2006.

At that point, Maniaci got married to a man, and began to raise the two children with her husband. However, Kulstad filed a complaint in the Missoula County (Montana) District Court, seeking to get joint custody, although she had not adopted the children and had no biological relationship with them.

The New American has obtained the judge's 54-page opinion of the Montana Supreme Court, which contains surprising expansions of custodial rights for what some states now call “de facto parents.” In so doing, the court has given nonparents legal right to the custody of children who are not theirs, but with whom they have a mere emotional or residential connection.

The court called Kulstad the “psychological parent” and a “loving and stable force in the children's lives,” and thus substituted this concept for the the traditional right of an actual parent to direct the upbringing of his or her children, as against all other persons challenging that role. Following this determination, it was an easy step for the court to conclude that “it was in the best interests of the children” to be with Kulstad.

As authority, the court cited a 1999 Montana law that establishes “nonparental parenting proceedings.” The actual mother sought to have this law declared unconstitutional, but the Montana Supreme Court would not do so.

In the judgment, the court stated, “Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry. Lesbian and gay Montanans must not be forced to fight to marry, to raise their children and to live with the dignity that is accorded heterosexuals.”

This ruling appears to be in conflict with numerous rulings by the U.S. Supreme Court, which has repeatedly ruled that parents have a right to direct the upbringing of their children. For example, in the 2000 case of Troxel V. Granville, the Supreme Court upheld the right of a mother to exclude the grandparents from visitation with her children. The Montana court addressed this precedent, and did a pretzel-like circumlocution to explain it away, so that it could rule in the way that it wished, despite the law.

Family law has traditionally dealt with custody of children when parents divorce, and more recently in cases of unmarried biological parents. Now, courts are going to increasingly have to deal with custody claims of unmarried, non-biological persons. State laws have usually lagged far behind societal trends, often leaving the cutting-edge changes to the judicial branch, even though the establishment of custody criteria is purely a legislative function. Montana's “nonparental parenting proceedings” are a rare exception.

Similar cases have established custody for “de facto parents” in Virginia and Massachusetts. As more families, heterosexual and homosexual, opt to live together without marriage, it is likely that this trend will accelerate, in absence of a strong state legislative effort.

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Flu-Bird said:

Judicial stupididy More outragoius judicial stupdidy its time to hold these judges liable for their negledence

October 19, 2009

Always American said:

... The moral demise of a nation always proceeds the ultimate dimise of a nation. -Fr John Corapi WAKE UP AMERICA!

October 19, 2009

slkx said:

Actually... I have met the birth mother, and her former partner, twice. And the birth mother is simply not as stable which is probably what swayed the judge to a large degree. Her former partner seemed down to earth (to me) and much more emotionally and mentally stable. Both clearly had maternal instincts and love for the two children, but as I say, the birth mother's erratic behaviour had to have an effect in the courtroom. And given the choice - giving children to the slightly nutty (presently) heterosexual woman or the stable homosexual one, well... I reckon that's what the judge was weighing up. You don't have to agree with the outcome - and most won't - but context is everything in debating this topic.

October 20, 2009

Gregory A. Hession J.D. said:

It's not who is the better parent....... Under the legal doctrine of preserving parental rights against non-parents, courts do not look at whether the parent may be "better" than all alternatives. Otherwise, we would have endless litigation to take children away from fit parents. As long as a parent does not seriously abuse or neglect a child, the state should have no business interfering in parental rights.

October 20, 2009 | url

Bonnie said:

Meanwhile, back on the farm... "Barbara Maniaci was the adoptive mother of a nine-year-old boy and a six-year-old girl." Neither of these two women is the biological parent of the children. I question the psychological stability of both women AND the courts going all the way back to the original adoption! What we are seeing is actually more of a consummation of Hillary's "it takes a village" idiocy. "as many as 70 percent of the children born out of wedlock" - is it any wonder the nation is so messed up? We are living in a giant barn yard!

October 20, 2009

Confused said:

... I have met the birth mother Who are you referring to? Barbara Maniaci is the adoptive mother and Michelle Kulstad has no legal relationship. You are actually referring to "mother" as in singular, not plural. Are you implying the nine year old and the six year old have the same birth mother and were then both adopted by Maniaci? What happened to the birth mother? Did she die? Was she incapacitated? Did the courts terminate her parental rights for some reason? Slkx is making statements which make no sense. You SEEM to be implying you knew and refer to Maniaci and Kulstad. Please explain yourself.

October 20, 2009

Dave said:

Sigh slkx: Conservatives don't debate... they yell and don't listen.

October 21, 2009

char said:

second parent adoptive rights What this article fails to mention is that it is very difficult (impossible in some states, due to state law) to find a judge that will grant a "second parent adoption" to a domiciled same-sex couple. So in this case, you pick.... one parent or the other to be on the legal documents. I wonder if you would be so quick to jump to the defense of the legal parent if it were Kulstad and Maniaci and her husband were seeking custody? Obviously both of these women have served as parental figures to the two children since they were adopted. It does a severe psychological injustice to the children to sever these ties. Too often, the rights, desires and needs of the children are forgotten in these cases. I applaud the court for making a logical, reasoned decision in this case. Just an aside. . . you guys really need to learn to use your spell-check. You do an injustice to your cause and your party by sloppy posting.

October 21, 2009

??? said:

I Think I Might Vomit Since when does "parents" mean two women?!? Correct me if I'm wrong but I seem to remember marriage between a man and a woman. What happened to the fundamental values of America? Have we flushed it down the toilet altogether? I sure haven't! Being gay or lesbian is NOT forced upon someone and it IS a choice just like i chose chocolate or vanilla ice cream. And what is "Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry." supposed to be? It sounds like something they pulled from the cesspool of the "feel good, don't wanna hurt anyone's feelings society" If I want to say being homosexual is wrong and disgusting I should be allowed to because it is a basic fact. You know what, I think I will say it! BEING GAY IS AN ABOMINATION!!! People who are homosexual should not have any "rights" like raising children or getting married just because that's what they choose. That's like giving a serial killer the "right" to kill because that's what they choose in life. 1)The kids should not have been adopted in the first place. 2)The kids should go back to the adoption home to be adopted by parents, not by some sickos trying to make themselves feel like they are normal (when they are not) and in the mean time ruining two kids' lives. I just don't know what is happening now to America. It was founded on Biblical values and now it gives no regard to the Bible or God.

October 26, 2009