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The evolution of parenting

By Al Knight July 7, 2004 DenverPost.com

There are two starkly different ways to view last week's Colorado Court of Appeals decision in the "two mommies" case. One is believable; one is not.

The first way to see the decision is as a victory for gay and lesbian couples who have been seeking ways to marry, to divorce and to adopt and raise children.

The July 1 decision, which upheld the rights of a former lesbian partner and non-parent to a 50-50 parenting arrangement with the child's adoptive mother, is certainly being hailed as a victory for gay rights by gay and lesbian groups. The National Center for Lesbian Rights, which filed a friend of the court brief in the case, heralded the decision as one that gave a "lesbian co-parent" the right to seek custody of a child.

The second, and much less believable, way to view the court's decision is the one suggested by the court itself.

The three-judge panel insists throughout its 50-page decision that the case has nothing whatsoever to do with lesbianism or gay rights. It insists it is simply interpreting a state statute that prescribes when a non-parent may seek the custody or visitation with a child. It says the case before it merely illustrates "the evolving nature of parenthood."

A reading of the decision makes it clear that the court wants to hurry along the evolution at a pace arguably much faster than the one chosen by the Colorado General Assembly.

State law, it should be remembered, prohibits gay marriage, forbids second-parent adoptions, and specifically prevents adoption by gay or lesbian couples.

Colorado law also contains a specific provision that parties such as foster parents or grandparents can only assert parental rights when they have had physical custody of the child for more than six months and the parents have been absent.

So how, then, did the court find a basis for upholding a 50-50 parenting arrangement (a scheme denied to countless biological fathers) for a former lesbian partner who was not a legal parent?

The answer is found in three parts. The court first minimized, if not ignored, a recent U.S. Supreme Court case (the Troxel decision) that specifically held that fit parents have a fundamental right to direct the upbringing of their children and that these rights are superior to those of others.

Secondly, the court relied on expansive language in a 1995 Colorado Supreme Court case, where the facts were entirely different. In that earlier case, the court awarded custody to a non-parent - but the biological mother had been absent since the child's birth. In the "two mommies" case, the legal mother, who had never abandoned her parental responsibilities, simply wanted to limit visitation by her former partner.

Finally, the court interpreted a single sentence in the statutes to mean that any person - a friend, a babysitter, a relative, a stepparent, anyone - who had cared for a child for more than six months could file a claim for parenting time. The court went on to say that these claims could be filed under Colorado law even though the biological and legal parent was never physically absent during the six-month waiting period.

The impact of this interpretation is breathtaking. It suggests that the legislature intended to invite the courts to resolve an untold number of potential disputes between boyfriends and girlfriends, between stepparents and biological parents and between relatives who may share some parenting chores.

The court, meanwhile, assures the public that appropriate judicial standards will be enforced so the rights of fit parents aren't violated.

While it is hard to argue that surrogate moms and sperm banks haven't altered the nature of parenthood, even biology has its limits.

There is nothing in the legislative record to suggest that the General Assembly wanted to give the courts authority to willy-nilly toss aside the right of a fit parent to direct the upbringing of his or her child as it has done in this case.

If the court's misreading of the law is as serious as it seems, the legislature need not wait for the inevitable appeal to the state's Supreme Court. It should correct the Court of Appeals at the first opportunity.

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