Montana Custody Case Decision Applauded

A lesbian who helped raise her ex-partner's adopted children has custodial rights under Montana law, that state's highest court recently ruled in a case with NASW involvement.

In Kulstad v. Maniaci, the Montana Supreme Court upheld, by a vote of 6-1, a 2008 district court decision to award Michelle Kulstad shared custody of the two children that Barbara Maniaci — Kulstad's ex-partner of 10 years — adopted while they were together.

Maniaci sought to deny Kulstad a relationship with the children after they separated, claiming that Kulstad was not a legal parent to the children.

By siding with Kulstad, the district court, and now the state supreme court, affirmed a state law that recognizes non-biological or non-adoptive parents as "de facto parents" if a child-parent relationship exists.

Writing for the majority, Justice Brian Morris said, "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."

NASW Associate Counsel Sherri Morgan praised the court's decision.

"The Montana court's decision affirmed the importance of a child's attachment to parental figures, regardless of the parent's sexual orientation," Morgan said, echoing the sentiments expressed in an amicus brief submitted for the court's consideration by NASW and the Montana chapters of the NASW and the American Academy of Pediatrics. "It is particularly during times of family transition that it is important for courts to protect the bond established between children and their parents, be they adoptive, biological or 'de facto.'"

Social science research conclusively establishes that "strong parent-child attachments develop regardless of whether there exists a defined legal or biological relationship between parent and child ... and when a child's attachment relationship with any parent — including a non-biological, non-adoptive parent — is severed, the emotional and psychological harm to the child can be significant," NASW asserted in the brief.

NASW was represented by a pro bono legal team from O'Melveny & Meyers, LLP, notably Luann Simmons and Sara Jeruss, and local counsel P. Mars Scott and Thorin Geist.

In October, NASW and its Ohio chapter proffered an amicus brief for a similar case being reviewed by an appeals court in that state.

In the matter of Goodman v. LaPiana (In re S.J.L.), a trial court in 2008 granted Rita Goodman shared custody of the two children her ex-partner, Siobhan LaPiana, gave birth to through artificial insemination during the course of their relationship. LaPiana has appealed the trial court decision, arguing that it ignores a 2004 amendment to the state's constitution prohibiting same-sex marriage.

"Reversing the trial court's determination of custody and visitation would not only rupture the children's longstanding attachment bonds with one of their parents, but it would also deprive them of a second source of financial support," NASW reasoned in the brief. "Because of the harm that could befall these children, it is critical that this court recognize the significant emotional, developmental, and financial support that psychological parents provide so that the best interests of [these children] and similarly situated children can be appropriately considered."

NASW and the New York State and New York City chapters in November filed a motion and amicus brief with the New York Court of Appeals in the matter of Debra H. v. Janice R. This is the fourth time NASW has filed the motion and amicus brief in support of Debra H.'s attempt to gain custody and visitation privileges of the biological child of her ex partner Janice R.

NASW members can access the NASW Legal Defense Fund's online Amicus Brief Database.