Utah rejects de facto parenthood

Utah's Supreme Court Friday flatly declined to follow Wisconsin, Washington, Massachusetts, New Mexico, Rhode Island, Pennsylvania, New Jersey and Massachusetts in recognizing a status of de facto or psychological parent at common law. It therefore denied standing to Keri Jones, a lesbian mother, to press for visitation rights for her young daughter. Jones had entered a civil union with the biological mother; had gones through insemination, prenatal care and birth as an intended parent; had been designated co-guardian of the girl, who shared both women's surnames; and helped raise for her two years before she separated from her partner, who subsequently had her stripped of guardian status and denied her all access to their daughter.

The court avoided any discussion of lesbian parenthood specifically, insisting that this was a major question of social policy to be decided by the legislature. It was the court's view that a common law parentage doctrine would inevitably be far too amorphous to determine a putative parent's standing (and thus jurisdiction), as it would essentially merge the question of standing with the merits of the case. It said that while the common law was always evolving, it could only work incrementally. And it further contended that it would be particularly inappropriate for the court to make this leap because "there simply are no bedrock principles" for determining de facto parentage. Apparently the doctrines (admittedly somewhat varied) of eight states do not count.

I find the argument that common law innovation can only be "incremental," and that recognizing de facto parentage would exceed these bounds, to be disingenuous. First-year tort law alone taught me that many of the "incremental" changes wrought by common law courts have profound affects. It seems to me that, in those areas that are still governed to a considerable extent by evolving common law, the court may always seek to adapt the law to new situations coming before it. The legislature can always abrogate their innovations.

A spirited dissent makes similar arguments, articulating a de facto test borrowing from other jurisdictions. It stated:

The child in this case is the product of a same-sex relationship, but she just as easily could have come from a more traditional one. Her opportunity to have the courts determine whether visitation with one of her parents is important to her present and long-term best interests should not be foreclosed. Indeed, children of dissolving, nontraditional relationships are just “as likely to become . . . victim[s] of turmoil and adult hostility as [are children] subject to the dissolution of a [traditional] marriage.” ... These children “need[] and deserve[] the protection of the courts as much as [children] of [] dissolving traditional relationship[s].” Id. To deny the forum of the courts for the resolution of children’s interests in nontraditional contexts would be to deny those children the protections afforded to all other children. This is contrary to “the public welfare and the true interests of justice.”

The dissent further noted that the legislature had not squarely considered the question now before the court, and thus it fell precisely within the "interstices" of the law (to use the majority's phrase) that the common law courts worked to fill.

What are the broader implications of this decision? Well, it reminds us that the strong trend toward nontraditional parental rights, at common law or by statute, is not an ineluctable one in the short term. Conservative state courts may still refuse to go this route, and from the point of view of the LGBT movement it may be wise not to litigate this issue at present in certain states. For my money, the court's assiduous avoidance of the "l word" suggests that even courts hostile to LGBT family rights are increasingly hesitant to take explicitly anti-LGBT positions when they justify their rulings facially neutral doctrinal terms. And that's progress of a sort -- for all the good it does Ms. Jones.