Queerty is better as a member

Log in | Register
justice

Montana Supreme Court’s Amazing Adoption Decision: Gays Are Equal Under the Law

WRjusticeforumA[1]

When the Montana Supreme Court yesterday upheld a lesbian mom’s right to custody over two children she shared with a partner, the 6-1 decision didn’t just secure a gay parent’s rights to see her kids, but set a new tone in the state’s high court: gays are equal, and the law must treat them as such.

The scene was Michelle Kulstad’s joint custody fight over a a 9-year-old boy and a 6-year-old girl she adopted (in 2001 and 2004, respectively) with now-former partner Barbara Maniaci, who left Kulstad and married a man. The twist: Montana state law prohibits two same-sex partners in a relationship to adopt, which meant Maniaci retained legal custody, effectively letting Kulstad parent the kids at Maniaci’s pleasure (in the law’s eyes). When the pair split, Kulstad in January 2007 filed for joint custody; Maniaci filed a motion to dismiss. The case went through the ringer (during which the former partners shared custody) before ending up in front of seven Supreme Court justices.

And while Justice Brian Morris wrote the majority opinion (“Maniaci cannot rewrite the history of the fact that she and Kulstad lived together for more than 10 years and jointly raised the minor children in the same household.”), it was Justice James Nelson who went one step further.

In an additional concurring decision, Nelson wrote: “I remain absolutely convinced … that homosexuals are entitled to enjoy precisely the same civil and natural rights as heterosexuals, as a matter of constitutional law. … [The ruling shows gays are ] equal participants with heterosexuals in our society … with exactly the same civil and natural rights, lesbian and gay citizens will continue to suffer homophobic discrimination. Regrettably, this sort of discrimination is both socially acceptable and politically popular. Sadly, this case represents yet another instance in which fellow Montanans, who happen to be lesbian or gay, are forced to battle for their fundamental rights to love who they want, to form intimate associations, to form family relationships, and to have and raise children – all elemental, natural rights that are accorded, presumptively and without thought or hesitation, to heterosexuals.”

Naturally, Maniaci’s attorney Linda Osorio St. Peter isn’t so pleased: “The oldest fundamental liberty interest recognized by the U.S. Supreme Court is the parental right to the care and custody and control of your own child. … This decision is a significant erosion into those constitutionally protected rights of a parent to raise his or her own child.” Justice Jim Rice agreed about the whole parenting thing in his dissent.

(Photo via)

By:           editor editor
On:           Oct 7, 2009
Tagged: , , , , , , , ,
  • 19 Comments
    • Jason
      Jason

      Iowa legalizes homo marriage, a Texas judge says her state’s marriage bigotry clause is illegal under the federal constitution and now a Montana Supreme Court justice says lesbians are the same as the rest of us!!

      *Checks outside for winged swine.

      Oct 7, 2009 at 1:23 pm · @ReplyReply to this comment ·
    • Our Family Coalition
      Our Family Coalition

      This is great news!

      Oct 7, 2009 at 1:30 pm · @ReplyReply to this comment ·
    • Rob
      Rob

      The headline is a little bit misleading. The language about homosexuals and heterosexuals being full legal equals appears in a concurring opinion, not in the opinion of the Court.

      Still, this is a very good case for us.

      Oct 7, 2009 at 2:31 pm · @ReplyReply to this comment ·
    • Brian
      Brian

      Justice Brian Morris said: ” . . . with exactly the same civil and natural rights, lesbian and gay citizens will continue to suffer homophobic discrimination. Regrettably, this sort of discrimination is both socially acceptable and politically popular.”

      Because religion continues to teach the traditional Christian belief that homosexuals are wrong, sinful and deviant we will continue to suffer discrimination. No “law” will make that go away. We need to fight the “source” of our discrimination and Religion needs to grow up and end those lies about us, or suffer the consequences.

      Oct 7, 2009 at 2:49 pm · @ReplyReply to this comment ·
    • Joe
      Joe

      I love the Queerty, but you got it wrong in this case. This case wasn’t about gay rights. This decision doesn’t advance gay rights at all, but it completely erodes parental rights. Practically this decision means that anybody that the court decides has an impact on a child’s life can now have parental custody – a nanny, a live in boyfriend/girlfriend/grandparent/roommate. Even a sports coach or child care worker could now file for parental rights. What does this mean for gay parents – it means that they can now have their parental rights given to other people. Let’s not forget that both parties in this case were homosexual. The Supreme Court obviously wanted to take a stand for gay rights – which is awesome – but they picked the wrong case to do it with, and now both gay and straight parents in MT are worse off because of it.

      Oh and now there is palimony in MT because of this ruling.

      And one clarification – MT law doesn’t prohibit same sex couples from adopting, it prohibits any non married couples (gay or straight) from adopting. What should be done to avoid these cases in the future is to institute gay marriage in this state.

      Oct 7, 2009 at 3:02 pm · @ReplyReply to this comment ·
    • Cam
      Cam

      No. 5 · Joe said…
      I love the Queerty, but you got it wrong in this case. This case wasn’t about gay rights. This decision doesn’t advance gay rights at all, but it completely erodes parental rights. Practically this decision means that anybody that the court decides has an impact on a child’s life can now have parental custody – a nanny, a live in boyfriend/girlfriend/grandparent/roommate.
      _________________________________

      Joe, no it doesn’t, it said that they adopted the kids together. A roomate etc… doesn’t get to adopt children with their roomate.

      Additionally, the langugage in court opinions can be used in subsequent cases, i.e. somebody now suing in Montana for gay marriage can point to the language from the Supremem court in this case and say “In the case of Kulsted v. Maniaci the court stated that gays should have complete equality under the law, that would logically extend to marriage” etc… lower courts don’t like to be overturned and such direct language from the State Supreme court could absolutly lead to favorable decisions about a host of other issues in Montana.

      Oct 7, 2009 at 3:22 pm · @ReplyReply to this comment ·
    • Joe
      Joe

      Cam, the couple did not adopt together, Maniaci adopted both kids. The basis Kulstad’s custody was the determination by the court that the kids had a “psychological connection” with Kulstad, and that is a very low bar to set for parental rights and in fact arguments could be made for nannies, live in lovers, grandparents etc…

      The problem Cam is that there are lawyers lining up to take cases of palimony under this ruling, let alone all the lovers that can now threaten to take their significant others kids away. While the opinions call for equality of gays under the law – the result of the ruling means that gay parents in fact have less protections under the law, their parental rights are no longer absolute, and it is this that the lower courts are looking at.

      It would be very hard for anyone to use this ruling to sue for gay marriage since there is a constitutional amendment in MT against gay marriage. This is a matter for the legislature or the public, and another reason why gay marriage laws should be passed.

      Oct 7, 2009 at 4:08 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      Joe- please give the slippery slope a rest before you fall further down the hill.

      Oct 7, 2009 at 4:27 pm · @ReplyReply to this comment ·
    • Cam
      Cam

      No. 7 · Joe said…
      Cam, the couple did not adopt together, Maniaci adopted both kids. The basis Kulstad’s custody was the determination by the court that the kids had a “psychological connection” with Kulstad, and that is a very low bar to set for parental rights and in fact arguments could be made for nannies, live in lovers, grandparents etc…

      ___________________________________
      Joe, look here at the wording of the concurring opinion

      Justice James Nelson concurred with the decision, but added: “Maniaci and her defense team attempt to avoid the one issue that makes this case uniquely important — the elephant in the room: whether homosexuals in an intimate domestic relationship each have the right to parent the children they mutually agree that one party will adopt (or, presumably, conceive.) The District Court and this Court have properly answered that question in the affirmative…”

      Joe, do you see the wording, especially in the phrase “whether homosexuals in an intimate domestic relationship each have the right to parent the children they mutually agree that one party will adopt”

      The court is acknowledging that the two had an intimate relationship and MUTUALLY AGREED that one would adopt since Montana law PREVENTS them both from adopting. This isn’t going to have an effect on roomates, etc.. because roomates don’t have an intimate relationship, and they aren’t prevented from adopting because a hetrosexual couple can get married, then legally adopt. It is in the case of a homosexual couple, who are prevented from getting married that this will apply. The easiest way to solve this problem will be for Montanna to legalize gay marriage….which, after reading this opinion I think this court would be very open to.

      Oct 7, 2009 at 5:22 pm · @ReplyReply to this comment ·
    • Joe
      Joe

      Cam, I see your point, however Montana law does not just prevent same-sex couples from adopting, it prevents all unmarried couples. So arguments could be brought under the concurrent opinion that relatives, grandparent or non-lover roommates of the same sex would also be prevented under law from mutually adopting, and therefore should qualify for parental rights. Or even hetero sexual couples who for whatever reason do not wish to marry could use this opinion to take parental rights from adopted parents.

      The basis of Kulstad’s parental rights as outlined by the lower court and affirmed by the Supreme Court is the “psychological connection” between Kulstad and the children. The rights of the child is the basis for this decision in the majority opinion, and only in the concurrent opinion is the same-sex issue mentioned.

      Point being, if the Justice’s wanted to limit the scope of this decision to same sex couples they failed. Even if they had limited it to same sex couples I would worry about our ability as adopted parents to both maintain parental rights of our children and carry out “intimate relationships” without fear that a jilted lover might try to take our kids.

      But I agree the easiest solution is gay marriage.

      Oct 7, 2009 at 6:18 pm · @ReplyReply to this comment ·
    • The Gay Numbers
      The Gay Numbers

      In this corner, Joe continues the slippery slope argument.

      In the other, Cam tries to debate a logical fallacy.

      Oct 7, 2009 at 6:31 pm · @ReplyReply to this comment ·
    • Alan
      Alan

      A concurring opinion, is, legally, just an opinion. Not part of the binding decision. So while what Justice Nelson wrote is welcome, it *itself* can’t be relied upon as precedent in any future decision.

      Queerty, you might want to edit the title and tone to reflect the reality here rather than your current misinterpretation. Getting false hopes up for people in the future as they find this via google isn’t good.

      Oct 7, 2009 at 7:14 pm · @ReplyReply to this comment ·
    • MC
      MC

      And The Gay Numbers summed it up quite well (and succinctly).

      Oct 7, 2009 at 10:19 pm · @ReplyReply to this comment ·
    • damon459
      damon459

      As a resident of Missoula Montana I watched this case unfold in the news the lower court had ruled in favor of joint custody and the higher court agreed this is very good news to may gay couples here who have children where only one is the legal parent of the child btw in Montana you don’t have to be married in order to adopt a child there are many single parent adoptions here as well as single foster parents I know I spent a period of time in foster care with a single foster mom.

      Oct 8, 2009 at 2:01 am · @ReplyReply to this comment ·
    • Robert, NYC
      Robert, NYC

      Brian, for [them] to suffer the consequences, how about starting a movement to remove tax-exempt status of any religious cult interfering in the political process? We should retaliate by gathering signatures to put on state ballots to overturn their exemption, give them a taste of their own hatred for a change. I’m sure there are many straight gay supportive allies out there including atheists who’d sign on.

      Oct 8, 2009 at 7:57 am · @ReplyReply to this comment ·
    • Cam
      Cam

      No. 10 · Joe said…
      Cam, I see your point, however Montana law does not just prevent same-sex couples from adopting, it prevents all unmarried couples.
      ___________________________

      Yes Joe, but the difference being, gay couples are prevented from marrying and therefore becoming eligible. If a straight roomate wanted to fight for visitation the court would just say “Hey, you should have gotten married” that reasoning can’t be used with a gay couple because they are prevented, therefore the court has to treat them differently int his case because the remedy available to all others wasn’t available to them. I get that you have somehow determined that you will see this as a bad thing, and as “The Gay Numbers” accuratly pointed out I am most likely pissing in the wind, but this case does not weaken parental rights, because the situation in this case would have been different if marriage was available to the two women.

      Oct 8, 2009 at 10:56 am · @ReplyReply to this comment ·
    • terrwill
      terrwill

      WTF is happening in the square states?? Iowa legalizes homo marriage and this Judge says the Gays are “equal” There must be tens of thousands of rightwing-nutbags hyperventilating right now………….. I only hope this brave Judge doesn’t suffer the same fate the Judge in Florida suffered when she ruled the ban on Gay adoption was unconstitutional………

      Oct 8, 2009 at 12:41 pm · @ReplyReply to this comment ·
    • Joe
      Joe

      Oh sorry Cam, I was wrong. After looking into this further it turns out that gay couples can adopt under Montana law. In fact this happens all the time. I spoke to an attorney recently in Missoula (during the course of my work day) and she told me she has done many of these adoptions. Essentially how it works is that one of the couple adopts the child and after the adoption the other person in the couple adopts through a step parent adoption. So I checked the trial transcript, it turns out both Maniaci and Kulstad knew about this but Maniaci didn’t want Kulstad to be a parent – this was when they were together. It was also stated during the trial that Kulstad was against both adoptions – but several years later changed her mind. The trial transcript also says that there was no ‘ring exchange’ ceremony.

      So, after learning this (I apologize for my lack of full knowledge) the Supreme Court makes even less sense from a gay rights perspective.

      Oct 8, 2009 at 3:16 pm · @ReplyReply to this comment ·
    • Jay
      Jay

      Too bad this is also illegal under Montana law. A non family member cannot receive any custody or rights to a child under Montana law unless the family member, or adopting parent, is declared as an “unfit parent”. More courts MAKING law instead of INTERPRETING the laws that are already on the books.

      Oct 15, 2009 at 1:12 am · @ReplyReply to this comment ·

    Add your Comment

    Please log in to add your comment

    Need an account? Register It's free and easy.



  • QUEERTY DAILY

     




    FROM AROUND THE WEB

    Copyright 2014 Queerty, Inc.
    Follow Queerty at Queerty.com, twitter.com/queerty and facebook.com/queerty.