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October 20, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

The Supreme Judicial Court of Massachusetts has upheld the right of a non-biological parent in a same-sex relationship to assert parental rights to the couple’s children.

Two women, Karen Partanen and Julie Gallagher weren’t married, but had an intimate relationship from 2001 - 2013. In 2005, they decided to have children and Partanen unsuccessfully underwent in vitro fertilization. In 2007, Gallagher successfully underwent in vitro fertilization and gave birth to a daughter, Jo. In 2011, the couple did the same thing and had a son whom they named Ja.

In 2013, they split up and Partanen asserted rights as a parent under the state statute governing the parental rights of unmarried fathers.

That statute provides that "a man is presumed to be the father of a child" born out of wedlock if "he, jointly with the mother, received the child into their home and openly held out the child as their child.”

The high court construed the law in gender-neutral terms, placing Partanen in the same legal position as an unmarried father, with the key difference being that she has no biological relationship to the two children. The Court ruled that a person in Partanen’s position can legally assert parental rights as a presumptive parent. That is, if he/she can produce sufficient evidence that he/she cared for the child and represented to the world that the child was theirs, then he/she can be determined by a court to have parental rights.

Under the facts of the case, Partanen clearly qualified as Jo and Ja’s parent and was so adjudicated by the Court. The key question before the Court though was whether the statute should apply to a parent who lacks a biological relationship to the child. As a practical matter therefore, the case is one that’s mostly, but not necessarily, applicable to same-sex partners. In those relationships, at least one parent will always lack a biological relationship to whatever child the pair have. It is of course possible for heterosexual relationships to have the same issue, but we seem to see that less frequently.

The Court pointed out first that the statute makes no reference to biological ties. I would argue that its use of the terms ‘father’ and ‘mother’ indicate that the Legislature assumed those ties, but the Court disagreed.

Also, the Court cited previous case law holding that a man asserting parental rights need have no genetic relationship to the child. So why would the justices rule differently in a same-sex case?

From this, it is apparent that a biological connection is not a sine qua non to the establishment of parentage under G. L. c. 209C.

Accordingly, it is now the law in Massachusetts that no biological relationship to a child is necessary for an adult to assert a claim of parental rights, as long as the adult establishes the statutory requirements of receiving the child into his/her home and openly holding it out as the couple’s child.

For now, I won’t dwell on the obvious defects in that statute. It’s much like those of other states and suffers from the same problems. Most notably, it encourages deceit on the part of the mother. As we’ve seen in cases out of California, a mother who wants to keep a father from his child and a child from its father need only keep the child a secret from him, and the deed is done. Dad can hardly play the role of father to a child whom he doesn’t know exists. Statutes of this sort place the onus of, in some way, finding out about the existence of a child on the person (the father) with the least knowledge instead of placing a statutory requirement on the mother to tell the dad. So the Bay State law suffers from the same shortcomings.

So, what are we to make of the Court’s ruling based on that statute? First and foremost, and entirely unmentioned by the Court, is the matter of children’s best interests. Clearly, the two kids had been cared for by both Partanen and Gallagher. They viewed them both as their parents and had formed parent-child relationships with both. For a court to destroy the children’s relationships with Partanen would have likely been seriously damaging to them.

It’s the same as in heterosexual relationships. I inveigh regularly against the destruction by courts of parent-child relationships for the very good reason that doing so damages kids. The same is true in same-sex relationships; the same is true in non-biological relationships. If the issue is the children’s welfare, then those relationships, once established, shouldn’t be torn asunder by a judge.

However, distancing parental rights from biological relationships between parents and children looks like the classic slippery slope, at the bottom of which lie weird and unjust outcomes. After all, how many “parents” will the law allow children to have? Conceivably, a parent with custody of a child could form relationships with an unlimited series of other adults, all of whom may behave as parents and whom the child considers as such. That is, the child could acquire a series of perfectly fit and loving step-parents, all of whom, under this case, could acquire parental rights. Vested with those rights, those step-parents could demand parenting time once their relationship with the biological parent breaks down. The child could then be travelling full-time from parent to step-parent ad infinitum.

The possibilities are as endless as the human capacity to get into unforeseen and unheard of relationships.

On the other hand, the law must evolve to meet evolving reproductive technology. Whether for good or ill, adults can obtain children in a variety of ways never contemplated by laws passed in times less adept at producing children. Two adults can now have children to whom neither contributes genetic material. That’s always been true in adoption cases, but now it occurs in a wide variety of others.

And of course our current proclivity for moving from one partner to another means courts must decide which adults deserve parental rights and which don’t. The Partanen case was decided entirely according to the statute and not based on the best interests of the child, although I suspect the decision did just that.

But the concept of a “psychological parent” has a wide-ranging potential for mischief. Perhaps most importantly, it can easily be used to displace a biological parent. Indeed, it’s done so in paternity fraud cases already. When Jane is in a relationship, whether married or not, with Jim and has a child fathered, unknown to Jim, by John, Jim may well play the role of Dad, assuming he’s little Andy or Jenny’s natural father. That may go on for years and the child come to think of Jim as his father. The two separate and it’s revealed that John is the biological father. In most jurisdictions, Jim will receive greater parenting time from the court than will John.

Most people would regard that as the sensible outcome, because the child identifies Jim as his/her father. But in the meantime, John has been displaced through no fault of his own.

The answer to much of this is to require mothers to identify the father of their child at the earliest possible time, preferably prior to birth. We already do that in Title IV-D cases, so why not require paternity establishment in every case? That would obviate the problem of the “psychological parent” in many cases, albeit not in the Massachusetts case. But there, no problem of a third parent arose.

The Massachusetts court did the right thing in the Partanen case. But there will be more cases applying and expanding the doctrine. When those occur, we’ll see the concept of “parent” expand, possibly beyond recognition and the rights of fathers and the well-being of children may more and more be the casualties.

 

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#same-sexmarriage, #non-biologicalparent, #parentalrights, #paternityfraud

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