De facto parent wins, out west

October 2, 2008

A Montana — Montana! — judge has granted parental rights to a woman who served as a second mother to her lesbian partner’s two adopted children.

The decision came earlier this week in a case called Michelle Kulstad v. Barbara L. Maniaci. In it, state District Court Judge Ed McLean found that the children would be harmed if Kulstad were cut out of their lives. He found that she was their de facto parent. Maniaci ceded some of her parental authority to Kulstad when she treated her like a co-parent, the judge wrote.

“To discriminate further against Ms. Kulstad because of her sexual preference in this day and age is no different than telling a person to go to the back of the bus because of her skin color,” McLean wrote.

He added later, “[w]hile parental constitutional rights are important, the constitutional rights of the children are important as well.”

This case shows some similarities to this year’s Janice M. v. Margaret K. decision, in which our Court of Appeals denied visitation to a woman who argued that she was a co-parent to her ex-partner’s adopted daughter.

The partner seeking visitation, Margaret, argued that she was a de facto parent and as such only had to show that the visits would be in little Maya’s best interest. But the court rejected the concept of a de facto parent, meaning someone in Margaret’s situation will now have to prove exceptional circumstances before getting custody or visitation against the primary parent’s wishes.

In both cases, the custodial parent denied visitation after the relationship broke up. (In the Montana case, the adoptive mother later married a man.)

In both cases, the custodial parent attempted to prove that the other woman had not served as a parent, despite evidence (most notably in the Maryland case, a Mother’s Day card from Janice and Maya to Margaret) to the contrary.

(Sidenote: according to the opinion, every night, Maniaci would play her kids a recording of her voice telling them that Kulstad “was not their mommy.” Eek.)

One key difference, though, is that the Montana women asked whether the second mother could also adopt their older child but were told that was not possible. In Maryland, there is no case law about second-parent adoptions, but judges in some parts of the state grant them routinely.

In other words, Margaret might have been able to adopt Maya but didn’t. Kulstad probably could not have adopted Maniaci’s son and daughter.

Kulstad’s lawyer told AmLaw Daily that he expects the decision to be appealed.

CARYN TAMBER, Legal Affairs Writer

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Posted by Jackie Sauter | Filed Under court of appeals, law 

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