An interesting Pandora's Box
Nov. 4th, 2005 11:16 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
jaunthieYesterday, the Washington State Supreme Court handed down a very interesting 7-2 ruling in the case In Re the Parentage of: L. B.". For those of you who don't like to read through majority (and minority) opinions, here's the summation of the majority decision:
"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 are also asked to decide, in the alternative, whether
Carvin has standing to assert rights to visitation with L.B. under
Washington statute. We conclude that she does not."
The dissent makes the contrary argument based on the Washington Uniform Parentage Act:
"...the outcome must be that a mother has a fundamental
right to make decisions for her child. The Washington Uniform Parentage
Act (UPA), chapter 26.26 RCW, requires the same analysis and conclusion as
do the state and federal constitutions: L.B.'s mother, Page Britain, is fit
(no contrary allegation has been made), and therefore the courts must
presume that she acts in her child's best interests."
Note that Carvin has not won de facto parenting rights; just the opportunity to attempt to prove same in a court of law (I have to take issue with Johnson's flight of fancy with the adverb "magically" - there's nothing magic about a trial court case). This case is getting a lot of press because the couple involved in this case is a lesbian one. I think it would be getting a lot less press if it involved grandparents, or an aunt or uncle, or an unmarried heterosexual couple where one of the parties was not the biological parent of the child (although in most of these situations there's a ton of law already on the books). I have to agree with the majority's assertion that:
" ... Washington courts have consistently invoked their equity powers and common
law responsibility to respond to the needs of children and families in the
face of changing realities. "
and that
"...In the face of advancing technologies and evolving notions of what
comprises a family unit, this case causes us to confront the manner in
which our state, through its statutory scheme and common law principles,
defines the terms 'parents' and 'families.'"
It's a discussion we need to have, particularly in light of the needs of children being raised by grandparents (just last night NBC Nightly News ran a report on the increasing numbers of grandparents raising their grandkids), other relatives, unmarried pairs, and a long so on.
That being said, from my quick reading this morning, I have to say that I don't think this decision is nearly the radical ruling some parties (on both sides of the fence) are making it out to be, granting substansive rights to relative strangers and/or parties that do not have a strong relationship with the child and/or somehow validating lesbian parenting (both the majority opinion and the dissent make it clear that the sex and gender preference of the parties is not and should not be at issue here). Washington State has a long and well-documented precedent of putting the needs of minor children paramount, even over parental rights. This decision clearly lays out the criteria that has to be met for a de facto parent:
"(1) the natural or legal parent consented to and fostered the parent-like
relationship; (2) the petitioner and the child lived together in the same
household; (3) the petitioner assumed obligations of parenthood without
expectation of financial compensation; and (4) the petitioner has been in a
parental role for a length of time sufficient to have established with the
child a bonded, dependent relationship parental in nature."
I'm rather curious to know what Big Bad Wolf and other legal folks (and my friends in general) make of this one, and whether they think this would be such a big deal if the case didn't involve a lesbian couple.
"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 are also asked to decide, in the alternative, whether
Carvin has standing to assert rights to visitation with L.B. under
Washington statute. We conclude that she does not."
The dissent makes the contrary argument based on the Washington Uniform Parentage Act:
"...the outcome must be that a mother has a fundamental
right to make decisions for her child. The Washington Uniform Parentage
Act (UPA), chapter 26.26 RCW, requires the same analysis and conclusion as
do the state and federal constitutions: L.B.'s mother, Page Britain, is fit
(no contrary allegation has been made), and therefore the courts must
presume that she acts in her child's best interests."
Note that Carvin has not won de facto parenting rights; just the opportunity to attempt to prove same in a court of law (I have to take issue with Johnson's flight of fancy with the adverb "magically" - there's nothing magic about a trial court case). This case is getting a lot of press because the couple involved in this case is a lesbian one. I think it would be getting a lot less press if it involved grandparents, or an aunt or uncle, or an unmarried heterosexual couple where one of the parties was not the biological parent of the child (although in most of these situations there's a ton of law already on the books). I have to agree with the majority's assertion that:
" ... Washington courts have consistently invoked their equity powers and common
law responsibility to respond to the needs of children and families in the
face of changing realities. "
and that
"...In the face of advancing technologies and evolving notions of what
comprises a family unit, this case causes us to confront the manner in
which our state, through its statutory scheme and common law principles,
defines the terms 'parents' and 'families.'"
It's a discussion we need to have, particularly in light of the needs of children being raised by grandparents (just last night NBC Nightly News ran a report on the increasing numbers of grandparents raising their grandkids), other relatives, unmarried pairs, and a long so on.
That being said, from my quick reading this morning, I have to say that I don't think this decision is nearly the radical ruling some parties (on both sides of the fence) are making it out to be, granting substansive rights to relative strangers and/or parties that do not have a strong relationship with the child and/or somehow validating lesbian parenting (both the majority opinion and the dissent make it clear that the sex and gender preference of the parties is not and should not be at issue here). Washington State has a long and well-documented precedent of putting the needs of minor children paramount, even over parental rights. This decision clearly lays out the criteria that has to be met for a de facto parent:
"(1) the natural or legal parent consented to and fostered the parent-like
relationship; (2) the petitioner and the child lived together in the same
household; (3) the petitioner assumed obligations of parenthood without
expectation of financial compensation; and (4) the petitioner has been in a
parental role for a length of time sufficient to have established with the
child a bonded, dependent relationship parental in nature."
I'm rather curious to know what Big Bad Wolf and other legal folks (and my friends in general) make of this one, and whether they think this would be such a big deal if the case didn't involve a lesbian couple.
