The “no duh” ruling of the day — a mom has a right to be a mom
Posted on February 16, 2007
Howard Bashman reports:
“The Utah Supreme Court today affirmed the parental rights of Cheryl Barlow, the mother of a 5-year-old child, granting Barlow’s request to reverse a lower court decision that had granted parental standing to her former partner, a lesbian political activist.” So begins a press release that Alliance Defense Fund issued today.
Today’s ruling of the Supreme Court of Utah in Jones v. Barlow can be accessed here.
It’s ridiculous that we’re even discussing (at state supreme court level no less!) whether a parent has the right to direct the upbringing of her own child without interference and disruption from a legal stranger. What we have in this case is a mother doing what she thinks is in the best interest of her own little girl. On the other side, we have a hardcore political activist creating chaos into the lives of that little girl and her mother, not in the best interest of the child, but seemingly in order to advance a radical political agenda. Of course, openly using children as political props is not uncommon among some.
The court savaged the idea that the homosexual extremists and lower court were attempting to advance that non-parents have veto power over true parents.
This temporary status is reinforced by the fact that the surrogate parent may arbitrarily cast the relationship aside at any time and thus terminate all parent-like obligations and rights. 67A C.J.S. Parent and Child § 348 (2002); Taylor v. Taylor, 364 P.2d 444, 445 (Wash. 1961). It would be a perverse doctrine of law that left a legal parent unable to enforce support obligations against a surrogate parent’s will because of the temporary status of the in loco parentis relationship but allowed a surrogate parent to extend her parent-like rights against the legal parent’s objections for as long as she saw fit. Under such a distorted legal regime, the parent like rights and responsibilities are permanent and abiding for as long as the surrogate parent wants them to be, yet transitory and fleeting when the legal parent seeks to enforce a parental obligation against the surrogate parent. Such an inequitable result, which would prioritize the rights of the surrogate parent over the needs of the child, demonstrates that the in loco parentis doctrine does not contemplate a perpetual grant of rights and is, in fact, ill-suited to convey such rights.
One of the arguments put forth in cases like this is that the non-parent “dressed the child, wiped his nose and took him to the zoo,” etc. This is for emotional impact only and has no legal meaning. By that argument, any day care worker, especially these days when many women are leaving their 12-week old babies in day care from 8-5 every day, to make parental claims.
The court did the right thing by restoring calm in the life of a little girl and common sense about the role and the rights of parents.
» Filed Under ACLU, Child Exploitation, Homosexual Agenda, News
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20 Responses to “The “no duh” ruling of the day — a mom has a right to be a mom”
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Oh, please. The two women did everything legally possible to solemnize their relationship as co-parents of this child, including establishing legal co-guardianship and giving the child both of their last names. The “day-care worker” analogy is ridiculous, as of course you already know. This is a story about a little girl losing one of her parents. If you cared about “families,” you’d have the grace at LEAST not to celebrate this ruling.
“If you cared about “families,†you’d have the grace at LEAST not to celebrate this ruling.”
I suppose you would have celebrated if it went the other way and parents’ rights were subordinated.
I think you should actually read the ruling and if you got beyond your emotional investment in this issue, you’d have to agree that it makes a whole lot of sense.
The fact is, Ms. Barlow is the child’s mother (and deemed a fit parent), Ms. Jones is not. Case closed. Not sure why that is so hard to grasp.
This child didn’t “lose one of her parents,” she escaped the vengeful chaos Jones created in her life because of this lawsuit.
Also, doing everything “legally possible” doesn’t exactly make you a stellar parent, even if it was true in this case, which it clearly wasn’t, since it was legally possible to get married, stay married, stay faithful, and put the child’s needs first. Don’t good parents do everything HUMANLY possible?
Nah, it’s tragedy regardless. The child had two loving parents and now she has just one. Everything about the birth and caring for this child was a shared experience, yet when the relationship crumbled, one lady walks away with everything for no other reason than that the state refuses to recognize a relationship that clearly existed.
I’m not saying the ruling was bad. It’s probably the only correct ruling based on the present statutes. The problem lies in the divorce statutes.
Have you ever been close to someone who was going through a contentious custody dispute? It’s never pretty, it’s always a shame, and it’s always understandable that the disadvantaged parent (usually the father) ends up scraping and clawing for some rights.
Biology is of only limited importance in child custody matters. Courts routinely rule on what rights and responsibilities a non-biological father has and quite often the answer is more than your logic would result in. Obviously, there isn’t a whole lot of precedent when it comes to homosexual relationships and the matter is further skewed because the state doesn’t fully recognize the relationship, but eventually the precedents will be set and someone in Jones’ position will have a simple path to petition the court without being labeled as “vengeful.”
“I think you should actually read the ruling and if you got beyond your emotional investment in this issue, you’d have to agree that it makes a whole lot of sense.”
I read all 45 pages, thanks very much. Only in the chief justice’s dissenting opinion do I see any evidence of compassion or consideration for the actual experience of this child. I have to believe that if you got past YOUR emotional involvement, you might have to acknowledge that there’s a little girl who’s never again going to get to someone she knows as a mother. I repeat: If you purport to care about families–not families as YOU define them, but families as they actually exist–you’d be wise not to expose yourself as a hypocrite by dancing on the grave of their relationship.
Aaack….”never again going to get to SEE someone she knows as a mother.” Sorry, typing blind here because the text box keeps running off the page….
“…since it was legally possible to get married, stay married, stay faithful, and put the child’s needs first.”
Since when is it legal for lesbians to get married in Utah?
“Biology is of only limited importance in child custody matters.”
Jeff, this is quite possibly the most ridiculous statement you’ve ever posted. Utah common law ONLY recognizes the rights of a biological parent if deemed fit.
What you call “routine” is actually highly unusual and this case is even more aberrant.
The right of a fit parent to direct the upbringing of her own child should be inviolable. It’s only now that some people are trying to push an extremist agenda that this is even up for debate.
Joanne–
The court was clear that it would not be inventing anything resembling what Jones was asking for out of “whole cloth.” The court acted like all courts should and made the correct ruling. I am looking at the legal principles involved and also at the social ramifications. You, on the other hand are looking purely at the emotional. We are in deep doo-doo as a sovereign nation when people expect the courts to make decisions based on the “feelings” of a person with an axe to grind and a political statement to make.
Cheryl Barlow did make a big mistake when she purposely denied her child a father and compounded the problem when she thrust the girl into a bizarre arrangement that included two women (no, not “two moms,” that’s impossible). She is now getting her life together after this other woman decided to get some on the side during their relationship and after Cheryl recognized the destructive nature of relationships of that sort — destructive for herself and more importantly for her child.
According to Barlow, what Jones has been saying about the relationship with the girl is a complete fabrication. The truth, according to Barlow, their counselors and other professionals close to the girl is that the girl has been emotionally terrorized by this woman Jones, who has been insisting, even though the girl has resisted that she call her “mommy” and insisting on overnight visitation at Barlow’s house, which astoundingly was granted by the lower court. Because of this suit, Jones nearly forced Barlow to lose the job opportunity she ultimately took in TX by filing motions to prevent Barlow from securing the financial well-being of her child. Additionally, where was the “compassion” from the Jones camp when Barlow was sentenced to prison because she didn’t follow the precise edicts from on high regarding visitation? Yet, you want to put this all on Barlow when Jones was the one who fractured the relationship in the first place. Any compassion for Cheryl Barlow?
Glib—
I know a whole lot more about this case than you think I do, so it’s easy for me to pinpoint some of the untruths you’re trying to sell to your readers here. Out of respect for the parties involved, though, I’ll just leave you to your biased, homophobic rantings.
Joanne, sorry about the “…since it was legally possible to get married ….†I assume that any gay couple wanting a family would do anything to obtain the security of a marriage – anywhere in the world. It IS legally possible for a gay couple in Utah to get married – they just have to move to a place where they allow gay marriage. I’m sure that’s a painful realization for the gay couple, but being born into an unstable family situation is devastating to a child. Jones is clearly more dedicated to “the cause” than she is to providing her daughter with a stable family.
And, barring marriage, it is legally possible to have a committed relationship, stay faithful, and put the child’s needs first – even in Utah.
Joanne–
Ditto for me on the first sentence on your last comment. Don’t assume you are closer to the situation. Nothing I have written can be challenged on the facts. I know you know this.
Of course, she pulls out the “homophobic” card. Dear, I do not “fear” homosexual behavior. What I fear is a court inventing law and definitions of a “parent” to satisfy an extreme political agenda or to make sure someone’s feelings aren’t hurt.
I must present a couple of scenarios (each involving fit biological custodial parents):
1. A woman bears a child and the father has run off. The woman lives with her mother, who, by mutual agreement between the women, takes an equal share in the care of the child. Four years later, the mother of the child finds herself in a position to move into her own place. The grandmother does not like this. She wants the child to stay with her despite the mom’s desire to take her child with her. Does the grandmother have equal claim to the child?
2. A man marries a woman with three children from previous relationships. The father of the the two younger children pays child support and is active the lives of the boys. The oldest one, say he’s nine at the time, was the product of a one-night stand and the mother was never able to locate the father. The couple stays married for five years, important formative years, and had talked about the man adopting the oldest son and the son taking the man’s name. The man had coached the oldest’s Pop Warner football team, had attended all of his track meets and parent-teacher conferences. The couple splits. Does the man have an equal claim to the oldest son?
3. A group of six people get together and form a commune. They agree to share everything and all take one last name, let’s say Earthmagnet. The six people break up into three couples (the kind that actually can and do produce children). One couple has children, the other for some reason do not. This couple decides to leave the commune. Do the other four people have an equal claim to their children?
Glib,
The answer is clearly “no” to all three of your scenarios, but you seem to be framing the questions incorrectly. Jones most definitely does not have an equal claim to the child, but her assertion that she has some claim is fairly reasonable.
There are basically four things at issue in a custody case: physical custody, legal custody (the right to participate in decisions which have a significant impact on the child), parenting time, and child support.
For heterosexual parents, the vast majority of the time, it breaks down as follows: Mom gets physical custody. They share legal custody. Dad gets a reasonable amount of parenting time (usually alternating weekends plus part of the summer) and dad makes support payments to mom.
The absolute best Jones could have been hoping for was the dad’s role as non-custodial parent and there is nothing “equal” about that. I don’t even see anything that says she was seeking shared legal custody, so all she was asking for was some parenting time with a child that she considered a daughter.
I’ll readily admit that I have no personal knowledge of this case. I don’t have an informed opinion on whether or not she deserves parenting time or whether or not she has pursued this case for altruistic purposes.
Her position, however, is not wholly unreasonable.
That is evidenced by the court’s reasoning: “Because we hold that Jones lacks standing, we reverse the trial
court’s order and decline to reach the merits of the remaining arguments.”
The law doesn’t recognize the relationship that clearly existed, so Jones can be completely barred from the child’s life. Even if Jones is the manipulative @#$#@ that you suggest, what if she weren’t? What if she was the best influence in the child’s life? The court still would have reached the same conclusion and the child would have been worse off for it.
That’s what I was getting at when I said biology wasn’t everything. It’s the ultimate tie-breaker, but the bottom line is always supposed to be “the child’s best interest.” If it’s in the child’s best interest
Elizabeth: Why should gay couples have to work so much harder than straight ones to have a family? At the time that Jones and Barlow got together, they would have had to move to, oh, the Netherlands in order to be legally married. Barring that, you’re suggesting that they simply should have stayed together, which sounds like an excellent goal—one that half of heterosexual couples fail to achieve. Stability for the children of gay parents will be truly possible when this nation allows equal access to marriage and adoption. Period. There’s nothing “extremist” about equality.
Glib: Jeff is quite right about the legal issues here. Your three scenarios have nothing to do with this case, and neither did the issue of Jones’s fitness as a mother (which, by the way, I have no inclination to defend). The court ruled that the nature of their relationship, independent of the persons or personalities involved, was essentially illegitimate and insignificant.
“Dear, I do not “fear†homosexual behavior.”
Dear, I was giving you the benefit of the doubt. If it isn’t fear, it’s just bigotry.
Let me get your logic straight:
Right-wing Christian legal organization that finances and publicizes anti-gay-parenting cases in hopes of establishing new case law = No agenda.
Guy who runs a blog called “Stop the ACLU” = No agenda.
Woman who was never especially active in lesbian causes until her partnerdenied her access to the daughter they raised together = EXTREME POLITICAL AGENDA!
Have I got that right?
Joanne–
In this case my agenda is to help expose attempts to radically remake society to the detriment of our most vulnerable citizens — children. My agenda is to support the inviolability of fit parents to direct the care of their children. So, yes I do have an agenda.
I am no more “bigoted” against people trapped in a life of homosexual behavior than you are against heterosexuals. You must have run out of good arguments. I am “bigoted” against people who treat children as unwilling gamepieces in a radical political movement. Read the previous post I did which is linked in the current post.
JONES’ “fitness” has NOTHING to do with what I was talking about. Barlow’s fitness as the MOTHER is the issue and she is a fit mother. What you support is forcing a fit parents’ wishes to be superceded by the whims of a non-parent. The court correctly ruled that the non-parent cannot overrule the wishes of the parent. “Jones’ fitness as a mother” is a nonsenscial measure as she is not the child’s mother. This shows how little understanding you have about what is involved in this case.
The scenarios I presented have everything to do with this case — all potential in loco parentis situtations. Since you are so dismissive of the relevance, I’m assuming you were thinking “of course not!” as an answer which obviously would bring you to the logical conclusion that your position is not as solid as when you started. If those situations are ridiculous, then so is this one. I should actually have brought in stronger language because what Jones was asking was not an “equal” say in the life the child, what she wanted was for her wishes to take precedence over Cheryl’s. What a bizarre idea that a court would even take such a case seriously.
Jeff–
Very well-written comment. One of your best. The big problem is that the the entire argument is fatally flawed because we have one fit biological parent wanting one thing and one legal stranger wanting another. You talk about what a “dad” can expect in a custody/visitation battle. What you are talking about is exactly what you wrote — a dad. Not someone acting in loco parentis. That is what Jones was. Such an agreement can and should, as the court correctly ruled, be controlled by the parent, not the person acting in loco parentis. What the court refused to do was invent a scheme that would allow the in loco parentis party to steer all decisions about the disposition of that person’s relationship with the child. Quite a ridiculous thing to propose. The court thought so too.
“Heterosexual parents.” Talk about incorrect framing Jeff. We don’t have to have a birds and bees conversation do we Jeff? OK, we will — only a man and woman can make a baby. : )
Joanne, I’m not saying it’s an equal situation for gays, whether or not it’s right for them to have marriage rights. I’m deliberately avoiding that argument altogether. It’s also not acceptable for hetero couples to treat children as pawns. For instance, the Anna Nicole Smith situation, in which her baby is thought of only as a moneybag, is as much as disgrace to society as is the Jones and Barlow situation.
What I am saying is: Jones has made choices to use a child, to the child’s detriment, to forward her own political agenda. That is actually evil – the ill use of an innocent. A couple genuinely wanting a strong and stable family makes CHOICES to make that happen, including relationship choices and lifestyle choices – location of homestead, etc – no matter the gender involvement.
If you’re going to stay in a hostile environment to fight the man, you have to think carefully before involving a child in that situation. Apparently, Jones did put a lot of thought into creating that child with Barlow, but not to the end of creating a safe home and family environment for her. That’s just shameful.
I am no more “bigoted†against people trapped in a life of homosexual behavior than you are against heterosexuals.
Well, you know, except for the fact that I don’t say they’re “trapped in a life of heterosexuality,” and I don’t accuse them of having a political agenda when they want to get married or to adopt children. Oh, and except for the fact that you don’t actually have any idea whether I’m gay or straight. But yeah, other than that,I’m a total heterophobe! Hee.
I am “bigoted†against people who treat children as unwilling gamepieces in a radical political movement.
One might level that accusation at either party in this case.
This shows how little understanding you have about what is involved in this case.
I so wish I were free to set you straight (so to speak!) on that.
Indeed. See the second paragraph of comment 5. I readily acknowledge that the ruling is most likely correct. The interpretation of in loco parentis was problematic at best.
That’s what bothers me, though. Jones is a stranger only in the eyes of the law.
- The two adults entered into a relationship intended to be permanent.
- During the course of that relationship, they decided to raise a child together.
- When the relationship broke down, there was a dispute over what rights, if any, one of the parents should have.
Aside from the genders of the adults, this scenario is identical to the countless custody battles that occur every day, yet the conclusion is very different. In every other custody battle, the decision is made based on the best interests of the child. In this scenario, it was based strictly on the biology. It happened this way for one reason and one reason only: the law doesn’t recognize a relationship that clearly existed.
This difference may or may not have any ramifications for this particular child, but it is very probable that there will be cases where the best interests of a child are not served by a strictly biological decision.
The “legal stranger” catchphrase became a rallying cry for Barlow’s side, ridiculously so. Her lawyer, and other supportive parties, used this angle to appeal to the homophobic masses by implying (or outright asserting) that if THIS “legal stranger” could claim rights to a poor innocent woman’s child, then so could a nanny, a daycare worker, or (I am not making this up) Michael Jackson.
Obviously, this is insulting, cynical nonsense. Few mothers sign co-guardianship agreements with their nannies.
Jones has made choices to use a child, to the child’s detriment, to forward her own political agenda.
I can’t agree. For starters, I’m not sure how you’ve come to the conclusion that it is “to the child’s detriment” to have a relationship with a woman she called “Mommy” for the first two years of her life. Jones’s primary interest was in maintaining a small amount of contact with a child she helped raise. Many of those who allied themselves with her effort were—not surprisingly—gays and lesbians who understood how much they stood to lose. To my mind, that’s a great deal LESS agenda-driven that Barlow’s acceptance of legal aid from the right-wing Alliance Defense Fund, whose stated mission is to help make new case law that disallows non-traditional families from enjoying the same benefits as traditional ones.
A couple genuinely wanting a strong and stable family makes CHOICES to make that happen, including relationship choices and lifestyle choices – location of homestead, etc – no matter the gender involvement.
Indeed, the child’s interests would have been better served had the couple lived in a place where their relationship could be legalized. So you’d agree that the United States does a disservice to the (innocent!) children of gay parents by not legalizing gay marriage and gay adoption, yes? I’m with you on that.