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Thursday, November 3, 2005

Tea Leaves and the Marriage Equality Case

Posted by on November 3 at 10:12 AM

This just in from the Washington State Supreme Court: They ruled on a custody dispute between two lesbians who had a kid in 1994, broke up in 2001, and started a sticky custody battle in 2002. The non-biological, non-adoptive mom wanted parental rights.

We must now determine whether Sue Ellen Carvin, who is neither a biological nor adoptive parent, has standing under Washington law to petition our courts for a determination of coparentage with regard to L.B. We conclude that she does…. We thus hold that henceforth in Washington, a de facto parent stands in legal parity with an otherwise legal parent, whether biological, adoptive, or otherwise.

The court ruled that a “de facto” parent—someone who’s there every step of the way, from the insemination and birth, to the first day of school, and every day in between—has the same rights with a legal parent. Now Carvin can go back to King County Superior court, show that she’s the de facto parent—by proving that she had a “parent-like” relationship, lived in the same household, assumed parental obligations without expectation of financial compensation, was in a parental role long enough to develop a “bonded, dependent relationship” with the child, and had “fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.” Then she can seek custody or visitation.

What’s this mean for the marriage equality case, on which we’re all waiting (some of us not so patiently) for a ruling? Well, I have a feeling the court wanted to deal with this case first, as the problems presented in it — two women in a custody mess because of a break up — likely could have been prevented had the women been able to seek legal recognition of their relationship. (Ahem: “Because the parties’ dispute did not arise in the context of dissolution of a marriage, a legal impossibility because of their lesbian relationship, statutory visitation was unavailable.”) Now that they’ve ruled on this one, hopefully the marriage case ruling is coming soon.

Second, the court included a few choice lines that seem to lay a foundation for the “same sex marriage is good for kids in same sex families” argument, including references to “modern” “nontraditional” families, “evolving notions of what comprises a family unit,” and the fact that “individuals may comprise a legally cognizable family through means other than biological or adoptive.” Most importantly, the court recognized that kids in same sex families today are pretty much screwed, especially if their unable-to-be-married parents have a messy breakup: “Our legislature has been conspicuously silent when it comes to the rights of children like L.B., who are born into nontraditional families, including any interests they may have in maintaining their relationships with the members of the family unit in which they are raised.” Here, here.