Dana Rudolph

Utah Court Says Non-Bio Mom Has No Rights to Her Child

Filed By Dana Rudolph | July 12, 2009 1:00 PM | comments

Filed in: The Movement
Tags: Jana Dickson, LGBT families, non-biological parents, parenting, utah

A couple of months ago, I mentioned the case of Gena Edvalson and Jana Dickson, a former couple now involved in a custody and visitation dispute over the three-year-old son they created together through assisted insemination and raised together until their breakup in 2007. Dickson, the bio mom, is now married to a man and is represented by the conservative Alliance Defense Fund. While living together in Utah, she and Dickson had both signed a co-parenting agreement. At the time of my first post, it was unclear if the courts would uphold that as evidence of Edvalson's parental status.

They didn't.

The Utah Third Judicial District Court has just ruled that Edvalson has no rights to the child and must lose even the weekly visitation that the judge had granted until the ruling. The court also stated that the contract "directly offends the state's public policy that parents retain the fundamental right to exercise the primary control over the care and supervision of their children."

It all boils down to how one answers the question: "Who is a parent?"

At her personal site, The Lost Mom, Edvalson wrote:

Last week the judge ruled in her favor. . . . I lost my son. He lost another adult (nay, a mom) who loves him. They lost their souls.

In an earlier post, she said:

I never want him to think I gave him up voluntarily. I never abandoned him. I loved him and I love him still.

But still we, he and I, wait. We wait to see what our citizenship in this great country means. We wait to see if laws can expand fast enough to prevent real suffering. We wait.

It's strange to live in both the present and the future. I know that one day this will be a non-issue. People will wonder how we could be cruel, so barbaric to rip a child from their mama. We will look at the reasons that the people doing it gave and see them as archaic and tragic. That will happen, for that I am sure. 20 years, 30 years, maybe 50 years. Yet right now, I'm not sure that our societies expanding values and notions of decency will happen fast enough to help me. My future is still within the scope of the narrow views that embody public policy and cultural warfare.

My heart goes out to her and her son. There are no words to convey the loss.

[Addendum: After I wrote the above piece, the Salt Lake Tribune did an article about the case. Interestingly, they report: "An attorney who defends parents in abuse, neglect and custody cases, Dickson said she is a 'stronger believer than ever' in the right of lesbians to marry and adopt -- if the biological mom wants her partner to do so."

Nope. Sorry. Any same-sex couple that decides to become parents together must do so with an understanding of equality between the partners. Going into parenthood with the belief that the biological parent somehow has more rights will lead to trouble in the relationship, and that's not good for the parents or the children. Yes, the law often gives the biological parent the upper hand. The law also often does not recognize the parents' relationship with each other. That doesn't mean we aren't free to define our own relationships to our partners and children with more equality than the law provides. That's called integrity.]

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This is the latest in a string of cases that highlights the importance of passing legislation establishing parentage based on consent to a partner's insemination with the intent to parent. Right across the Utah border in New Mexico, that principle becomes law on January 1, 2010. It will also shortly become law in the District of Columbia. If such a law had been in place for this couple, then Gena would have been a mom immediately.

As for Jana's view on adoption by a partner if the biological mom wants that, I wonder if she thinks a husband who consents to his wife's insemination expecting to be a parent should also have to adopt the child...and should only be able to do so if the wife hasn't changed her mind before the legal proceedings can take place. If she does, well, she is out of step with the law everywhere. And if she doesn't -- that is if she thinks there should be a different path to parenthood for different-sex couples than for same-sex couples -- then she is as anti-gay as the Alliance Defense Fund that represented her in the destruction of her child's family.

Why didn't the mother file for second parent adoption before the child was even conceived?

It seems like she was just setting herself up to lose her child.

Utah does not permit second parent adoptions, so that was not an option for this mom.

What a tragedy, although I can't avoid shaking my head at the mother who thought of agreeing to having a non-biological child in a state where the other person could easily deny her parenthood if they got into some petty fight.

Erich Riesenberg | July 13, 2009 8:29 AM

Lucrece, you really should read the news article before commenting. Know a little bit about the case.

Dickson sounds like a horrible person.

Regan DuCasse | July 13, 2009 1:32 PM

If this step father and this woman break up, how is it fair that he be able to retain second parent status and not the FIRST parent to this child?
He's the non biological too.

Because of the zeal to restrict gay people on adoption and marriage, the state creates cruel laws that WILL affect this child.

I guess as long as they are hurting 'the gays' or think they are, it's all good, right?

This case is compounded by the fact that it's set in Utah, which has deliberately gone about restricting the rights of gays and lesbians to adopt.

And yet, I don't think this is as much about the right of gays to marry and adopt as it is about the state denying the right of someone to maintain their parental relationship to their children. It's perfectly likely that the same thing will happen to the stepfather if he breaks up with Dickson, even if he establishes a parental relationship with the child, and it would be no less unjust.

The laws need to change to respect the history of people's relationships with each other, not the type of relationships i.e not whether or not people have been married to each other or not. Dana asks the right questions: Who is a parent? That shouldn't be determined by spousal relationships.

For that reason, I wonder how many straight couples are also affected by rulings. I believe thes these laws also apply to unmarried couples. They also apply, it seems, to divorced straights. The paper writes that "In 2008, the Legislature restored an avenue for nonbiological parents, including stepparents, to seek rights to a child, but -- addressing concerns raised by conservative groups about gay and lesbian partners -- only when the biological parent has abandoned or abused the child." That sounds like it's equally tough for straight stepparents/people in non-biological parental relationships to gain visitation rights to their children. It's the rights of all parents that are at stake here.

Oh, absolutely, Yasmin. While I am probably more adamant about marriage equality than you, for various other reasons (and I hope we can respectfully disagree there), I very much believe that marriage cannot be the determining factor for parenthood. It isn't for straight parents, and it shouldn't be for us, as you say. (And I know Nancy Polikoff has written extensively on this as well.) My own parenthood was secured through a court long before my partner and I could marry--though having to go to court at all still irked me. The intent to parent should have been enough to secure both our rights as parents, in any jurisdiction.