The Oklahoma Supreme Court not only ruled in favor of a nonbiological mother in a child custody case yesterday, but established guidelines for future cases, writing conclusively that “A non-biological same-sex parent stands in parity with a biological parent.”
The outline of the case unfortunately parallels far too many that we’ve seen before, in which a biological mother tries to deny parental rights to a nonbiological one. Lori and Heather “built and shared a life together in the ten or so years before Oklahoma recognized marriages between two people of the same sex,” the 8-1 ruling tells us. They used assisted reproduction to start their family, and a friend of Heather’s named Kevin was their sperm donor. In 2007, Heather gave birth to J.L. From the start of their journey to parenthood, they both intended to raise the child together.
For eight years, “J.L. grew up in a nurturing and loving environment with two parents, during which time J.L. came to know Lori as a parent in every significant sense.” Lori “was a full and active participant in J.L.’s emotional, social, and intellectual development” and “supplied all the financial stability” for the entire family.
Lori and Heather separated in April 2015, however, and Heather left, taking J.L. with her. For seven months, Lori had regular visitations with J.L., but then Heather abruptly stopped Lori from any further contact. Lori then petitioned the district court for shared legal custody and visitation.
Heather then brought Kevin into the proceedings and requested that the trial court determine that he was J.L.’s “biological and natural father” and therefore entitled to full parental rights of custody, visitation, and support. The court documents tell us, however, that “Before this litigation began, Kevin was not demonstrably involved in J.L.’s life.” Since the court battle started, however, Kevin has had J.L. for overnight visits and introduced her to his wife and children. She refers to him as “Kevin,” the court relates, although as their contact has grown more frequent, she calls him “‘dad’ on occasion.” Kevin testified that “Lori’s custody action ‘forced [his] hand’ in entering J.L.’s life earlier than he expected, though he had always hoped to do so at some unspecified future time.”
Heather and her lawyers also tried to argue that the decision in Ramey, a similar 2015 custody case involving a same-sex couple, required that Kevin give his consent to Lori’s parental role. Although a lower court had agreed with Heather’s interpretation, the state Supreme Court was having none of that. Chief Justice Noma Gurich wrote in the decision, “To be abundantly clear, Ramey focuses on the carefully and consciously chosen intentions of the parties within the same-sex relationship-–not the subjective beliefs of the third-party donor.”
The court didn’t stop with a determination of Lori’s parental status, however, but used the opportunity to clarify the status of nonbiological parents in future cases. “We hold that a non-biological same-sex co-parent has the right to seek custody, visitation, and support of his or her child on the same equal terms as the biological parent,” wrote Gurich.
Prior to the current case, Gurich explained: “In the context of same-sex parentage, we have thus far allowed a non-biological parent standing to assert parental rights only in loco parentis.” This status, by definition someone who acts “in place of a parent,” is “by its very nature, a temporary status.” That means that up till now:
We have not presumed parentage for the non-biological parent in same-sex couples, but allowed the pursuit and validation of such rights only when there exists some prior agreement between the couple regarding the same–and only where the same-sex couple was “unable to marry legally” before Bishop and Obergefell. We can no longer say that this approach serves the best interests of the children of these relationships.
In order to assist lower courts in future cases, Gurich adds the following guidelines:
We conclude that, to establish standing, a non-biological same-sex co-parent who asserts a claim for parentage must demonstrate—by a preponderance of the evidence—that he or she has engaged in family planning with the intent to parent jointly acted in a parental role for a length of time sufficient to have established a meaningful emotional relationship with the child, and resided with the child for a significant period while holding out the child as his or her own child. As always, a court shall assess these factors with the best interests of the child as its foremost aim. When a continuing relationship with the non-biological parent is in those best interests, a court must honor its validity and safeguard the perpetuation of that bond.
In other words, “Lori did not act in the place of a parent; she is a parent. The record in this case cannot reasonably be read otherwise…. Consistent with the best interests of children in similar scenarios, we hold that non-biological same-sex parents may attain complete parity with biological parents.”
