Utah Supreme Court Denies Visitation to Separated Lesbian Couple

[Stegyre]

I tried to come up with a better title for thread juxtaposition purposes, but . . .

This morning, the Utah Supreme Court announced its 4-1 decision, denying visitation rights to the non-biological member of a lesbian civil union. The couple formalized their union under Vermont law, and one of them was artificially inseminated and had a child. After the child's second birthday, the couple broke up, and the non-biological member sought visitation rights. (There were, apparently, plans for the other member to be inseminated and bear a second child, but the relationship broke up before that happened.)

I've only skimmed the decision, but essentially, the Utah Supreme Court held no common law or statutory right of visitation existed (the non-biological member's standing to sue "in loco parentis" ended when the relationship with the biological parent ended), and the Court was not inclined to judicially create such a doctrine.

The dissenting panelist was the Chief Justice, the most liberal member of the Court.

You can read it here. And discuss, to your hearts content, below.

 

[emzie]

It should be overturned in Federal Court. Like it or not, Utah has to recognize the laws of other States.

 

[Perfection]

When it comes to nontraditional family (I use that in common parlence for husband-wife-kids) , the focus should be the well being of the child not the rules governing traditional families. If this isn't in the laws it should be.

 

[Bill3000]

It should be overturned in Federal Court. Like it or not, Utah has to recognize the laws of other States.

Technically, it doesn't, given the Defense of Marriage Act.

 

[MobBoss]

It should be overturned in Federal Court. Like it or not, Utah has to recognize the laws of other States.

Like it or not, no it doesnt. If the state of Utah has not law in regards to civil unions or gay marriages it does not have to recognize their status.

 

[Stegyre]

Technically, it doesn't, given the Defense of Marriage Act.

Correct. Short of SCOTUS, a federal court cannot sit in review of a state court decision. (I'm drawing a blank on the name for that doctrine, even though I used it in a recent federal case. )

 

[MobBoss]

I remember a case last year in which a married lesbian couple from Massachusetts had moved out to the mid-west somewhere and then things went sour....they filed for divorce, but apparently the judge on the matter refused to hear the case since there was no provision to legally recognize gay marriage in the state they were filing for divorce in. Apparently, if they wanted a divorce, they would have to return and file for one in the issuing state of Massachusetts.

 

[Aegis]

Well, she better not be forced to pay Child Support if she was rejected visitation rights based on ending the relationship with the mother.

 

[El_Machinae]

She moved to Utah after they got hitched?

 

[Stegyre]

Well, she better not be forced to pay Child Support if she was rejected visitation rights based on ending the relationship with the mother.

Agreed: the benefits and burdens are a package deal: you don't get one without the other.

That being said, there doesn't appear to be any issue of that in this case. As far as I can tell, there wasn't even any sort of "divorce" proceeding. As Utah does not recognize the couple's relationship, all the biological parent had to do was move out and refuse to let her former partner visit. The ex-partner has petitioned for visitation. The bio-parent has not (as far as the opinion mentions) requested any sort of support.

 

[Stegyre]

She moved to Utah after they got hitched?

Reading between the lines of the decision, the couple probably met in Utah, went to Vermont to "get hitched," and came back to Utah.

 

[GenMarshall]

This is what makes same-gender marriage a sticky issue.

 

[Masquerouge]

This is what makes same-gender marriage a sticky issue.

No, the lack of legislation makes it a sticky issue, not same-genders marriages per se.

 

[JollyRoger]

This is what makes same-gender marriage a sticky issue.

Actually, this is what makes states ignoring the full-faith-and-credit clause of the United states Constitution sticky. If you get straight married in Vermont, you can get divorced in Utah, even though the marriage laws are slightly different in Vermont. Visitation rights would also be granted, even if your initial straight marriage in Vermont would have been void under Utah law (one party was too young, no Utah marriage license, etc.).

 

[Stegyre]

No, the lack of legislation makes it a sticky issue, not same-genders marriages per se.

No. Utah (and several other states) do have legislation. It just isn't favorable to these relationships. (I.e., the legislation explicitly denies recognition of such relationships and denies them "marriage-like" benefits.)

I understand your point, but the fact is, the couples doing this do so, not in a legislative vacuum, but in an adverse atmosphere. That may be unfair, to those who believe these relationships are entitled to all of the same rights/responsibilities/etc. as regular marriage, but it is what it is, and couples getting into this are accepting exactly this risk, although they need not like it.

 

[Stegyre]

Actually, this is what makes states ignoring the full-faith-and-credit clause of the United states Constitution sticky.

Yet, here is another perspective: allowing states to ignore f-f-a-c in this particular instance (because of DOMA) takes a lot of the pressure off enacting a constitutional amendment banning gay marriage. Although that was probably not an intended consequence of DOMA, I do see it as acting as an effective compromise: turning the issue of gay marriage over to the individual states.

 

[Masquerouge]

No. Utah (and several other states) do have legislation. It just isn't favorable to these relationships. (I.e., the legislation explicitly denies recognition of such relationships and denies them "marriage-like" benefits.)

I thought the ratio decidendi of the Supreme court was that no laws existed, and it was not willing to make a precedent?

I understand your point, but the fact is, the couples doing this do so, not in a legislative vacuum, but in an adverse atmosphere.

I thought it was actually the adverse atmosphere that prevented the creation of a judicial framework for same-sex unions...

 

[brennan]

If a straight couple adopted a child and then split up. Would the party that did not get custody have visitation rights?

 

[JollyRoger]

If a straight couple adopted a child and then split up. Would the party that did not get custody have visitation rights?

Adoption is treated like having a natural child. The solution would be to formally adopt, if that is even possible for a gay couple in Utah. I wonder how the court would have treated the couple if they had a formal adoption order from another state.

 

[brennan]

Adoption is treated like having a natural child. The solution would be to formally adopt, if that is even possible for a gay couple in Utah. I wonder how the court would have treated the couple if they had a formal adoption order from another state.

The pdf mentions a precedent for step-parents gaining visiting rights as well. So that's visitation rights for natural parents, adoptive parents, step-parents... same sex parents married (effectively) in another state? uh uh.