Court redefines parenthood
Seattle Times staff reporter
How they voted
Justices voting with the majority: Bobbe J. Bridge, Barbara A. Madsen, Charles W. Johnson, Gerry L. Alexander, Susan Owens, Tom Chambers, Mary Fairhurst
Dissenting justices: James Johnson, Richard B. Sanders
To read the court's decision: http://www.courts.wa.gov/ opinions/index.cfm?fa= opinions.opindisp&docid= 756261MAJ
To read the dissenting opinion: http://www.courts.wa.gov/ opinions/?fa=opinions. opindisp&docid=756261DI1
The Washington Supreme Court established what amounts to a new category of parents — one that's the legal equivalent of moms and dads — when it ruled Thursday that a lesbian who was neither the biological nor adoptive parent of a girl she helped raise has co-parenting rights to the child.
The decision, which significantly impacts parenting laws in the state, may also signal the direction the high court will take in deciding a gay-marriage lawsuit pending before it — a prospect that delights same-sex marriage advocates and horrifies opponents.
In the 7-2 decision hailed by gays as an acknowledgement of the complexity of families, the court recognized what it called a "de-facto or psychological parent" under the state's common law as one who "in all respect functions as the child's actual parent."
The attorney for Page Britain, the child's biological mother, warned that the ruling strips away parental authority, setting the stage for any adult who helps raise a child — from roommates to live-in lovers — to make parental claims. He will recommend his client appeal to the U.S. Supreme Court, he said.
Writing for the majority, Justice Bobbe J. Bridge said, "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 ... defines the terms 'parents' and 'families.' "
She said neither the U.S. nor state Supreme Court has ever restricted the definition of parent or family by biology. "Today we hold that our common law recognizes the status of de-facto parents and places them in parity with biological and adoptive parents in our state," she wrote.
In regard to common law, the ruling said, "the courts will endeavor to administer justice according to the promptings of reason and common sense, which are the cardinal principles of the common law."
Six other states also recognize de-facto parents.
Sued former partner
Sue Ellen "Mian" Carvin sued Britain, her former partner of 12 years, two years ago after Britain stopped allowing Carvin to see the girl because of disagreements over how she should be raised. The two had jointly cared for the child until separating when she was 6.
They had used donor sperm to produce the child, known in court documents as L.B., now age 10.
Carvin did not adopt the child but stayed home with her while Britain worked outside the home.
In L.B.'s baby book, Britain crossed out the word father and wrote Carvin's name as a second mother. The child referred to Carvin as "Mama" and to Britain as "Mommy."
Britain is now married to the sperm donor, and Carvin has been granted limited visitation with the child.
The high court's ruling upheld a Court of Appeals decision that similarly recognized the status of de-facto parents. Thursday's ruling allows Carvin to return to trial court to seek the same parental rights and responsibilities Britain has. To be considered a de-facto parent, she must prove she and the child had lived together, that she helped raise the child without expecting to be paid, that a bond formed between them, and that the child's legal or natural parent encouraged the relationship.
In a blistering dissent, Justice James Johnson criticized the court, writing that it was ignoring parental laws already established by the Legislature and creating, by judicial decree, a new method of determining parentage.
"This outcome is unconstitutional and in derogation of rights of the mother because it interferes with an admittedly fit parent's fundamental right to make child-rearing decisions," he wrote.
He was saddened, he said, "by the impact caused by this judicial rewrite of our parentage laws on this child — poor little L.B."
Uniform Parentage Act
The court pointed out that the current version of the state's Uniform Parentage Act, adopted in 2000, recognizes parentage without distinction of marital status or gender. The court also said the Legislature has been "conspicuously" silent when it comes to the rights of children like L.B., who are born into nontraditional families.
In his dissent, Johnson argued that the parentage act defines who a parent is, and that Britain qualifies while Carvin does not. It's not up to the court to decide any ambiguity in the law, but to lawmakers, he said.
But Bridge believes that common law can be used to resolve ambiguities.
"Reason and common sense support recognizing the existence of de-facto parents and according them the rights and responsibility which attach to parents in this state," Bridge wrote.
Lisa Stone, executive director of the Northwest Women's Law Center, which represented Carvin, called it a great day for families.
"The court says that lesbians' families are no different from other families that split," Stone said. "What this means is that this child can have two parents. Who can say it is sad if a child has two parents?"
In a statement, Carvin said the court, in its decision, has become the voice for her daughter and children like her. "Although this case is about the relationship between my daughter and me, it stretches beyond those boundaries to include other families in similar situations," she said.
But Brian Krikorian, attorney for Britain, said the ruling undermines parents, particularly single parents, by taking away their authority to decide what's in the best interest of their own children.
"This decision puts every single parent on notice: Anytime you allow another adult to assist in raising your child, you could potentially be giving that person 50-percent authority over your child."
Jeff Kemp, president of Families Northwest, a conservative organization that advocates for traditional family values, referred to this "new territory."
"It sets the stage for a lot of problems and complicated battles, the net effect of which will be fewer rights and responsibilities of parents to take care of their own children."
But Aaron Caplan, staff attorney for the American Civil Liberties Union of Washington, which filed a friend-of-the-court brief in the case, said the ruling is a boost to nontraditional families because it recognizes that the sexual orientation of parents is irrelevant in decisions about parental rights.
"The court's opinion recognizes that parenting is not just about biology or about legal recognition, but rather about the relationship between a parent and her child."
The ruling energized same-sex marriage proponents, who saw it as a signal to how the Supreme Court might rule in the case now before it. At issue in that case is whether the state's Defense of Marriage Act, which restricts marriage to heterosexual couples, is constitutional.
"People all over this state are picking through every word of this decision to figure out what clues it gives," said Stone, whose organization represents same-sex couples in the gay-marriage case.
"You never know, but I'm hopeful because the court speaks so strongly about sexual orientation being irrelevant and recognizing that families are different from what they used to be.
"Clearly the court recognizes the changing nature of today's family."
The Rev. Joseph Fuiten, pastor of Cedar Park Assembly of God Church in Bothell, decried Thursday's decision.
"There's no such thing as de-facto parent; you're either a parent or you aren't," he said.
Fuiten, who is also chairman of the Faith and Freedom Network, a conservative Christian lobbying organization that strongly opposes gay marriage, worries that the ruling is an indication of where the court is heading on the question now before it.
"They've changed the definition of parents today; they'll change the definition of marriage tomorrow. Who do these people think they are?"
Stone said Carvin will now return to King County Superior Court to try to prove her rights as a parent and ask for a parenting plan, a visitation schedule and to pay child support. She now sees the child for a few hours about once a month.
Lornet Turnbull: 206-464-2420 or email@example.com
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