Ellen Andersen

One step forward, one step back

Filed By Ellen Andersen | February 18, 2007 10:23 PM | comments

Filed in: Marriage Equality, The Movement

On the good news front: Same-sex couples in New Jersey will be able to apply for civil union licenses beginning tomorrow, Feb. 19th (the same day that LGBT Hoosiers and their allies will be protesting SJR 7 in a rally at the Statehouse.) On a related note, New Jersey's attorney general announced on Friday that New Jersey will honor same-sex marriages performed in other states for all purposes of state law, but won't call them marriages. Because same-sex couples can have all the legal rights and responsibilities; they just can't have the cultural cachet that comes with marriage. So here's the tally right now for those of you keeping count: Same-sex couples can marry in one state, can get civil unions/domestic partnerships in four states, and are constitutionally prevented from marrying in 27 other states.

On the bad news front: The Utah Supreme Court decided last Friday (February 16th) that under Utah law, when same-sex relationships end, nonbiological/nonadoptive mothers have no right to visitation over the objections of the biological/legal mother. Questions about child custody and visitation are among the trickiest issues facing same-sex couples whose relationship has dissolved - and a major reasons why LGBT families need the protection of marriage (or civil unions). Let's face it: divorce doesn't usually bring out the best in people. While some couples who break up manage to conduct themselves with dignity and mutual respect, many others descend into bitterness and enmity. And for at least some people, children turn into pawns, weapons to be used against the former partner. In several states, courts have employed the 'in loco parentis' doctrine (literally, in the place of a parent) to give visitation and custodial rights to nonbiological/nonadoptive mothers (the theory holds true for men as well, but the cases to date have all involved women) - when the court finds that the partner has acted as a parent to the child and that continued contact is in the child's best interest. The Utah Supreme Court, however, rejected this use of the 'in loco parentis' doctrine, ruling that it "does not independently grant standing to seek visitation against the wishes of a fit legal parent." The English translation: biological (or adoptive) parents whose same-sex relationship has dissolved can shut nonbiological/nonadoptive parents out of their kids' lives whenever they want to. The case is Jones v. Barlow.

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