SJC rules on parental rights of lesbians

The state's highest court ruled yesterday against a lesbian who sought to establish parental rights to the 5-year-old biological child of her former partner, because she did not adopt the child during the 18 months they were together after the infant's birth.

The case reflects the Supreme Judicial Court's view that same-sex couples who fall out of love while raising children must abide by the same legal rules as any other dissolving couples: What counts in the court system are birth certificates, marriage licenses, adoption papers, or proof that you share equally in the nurturing of the youngsters.

In a complex legal case that stretched over three years, a lesbian from Middlesex County put forward some novel legal theories to establish her parental role. She said she deserved to be a legal parent because she and her former partner had effectively formed an agreement to raise a child together. She also argued she should be, at least, a de facto parent with visitation rights, because what she lacked in time with the child she gave in money as the primary breadwinner.

Her case was backed by briefs from Gay & Lesbian Advocates & Defenders of Boston, a legal rights group for gays and lesbians, and Fathers and Families, a father's rights group that represents many divorced fathers.

But in a unanimous opinion, written by Chief Justice Margaret Marshall, the court said the woman failed to meet the state's requirement for legal parental rights or prove that her emotional bond was so strong that she deserved at least court-mandated visitation.

The justices said the woman never took up her option to adopt the baby, which would have given her the same rights as the biological mother. (Same-sex marriage was not an option when the women ended their relationship in 2003, when the child was about 18 months old.) The court also said the woman, who toiled long hours as codirector of a nonprofit organization, did not spend enough time caring for the child to establish her parental rights while the biological mother tended to most of the caretaking.

Marshall wrote that while the plaintiff may love the child and the child may derive some benefit from spending time with her, "these facts are insufficient, in themselves, to accord the plaintiff parental rights."

Lawyers for the biological mother -- Regina Hurley and John Foskett of the law firm Deutsch Williams -- said the court's opinion shows that courts now apply its child-protection measures equally, regardless of the sexual orientation of the couple.

"They're neutral on whether they are same-sex or heterosexual," Foskett said.

Elizabeth Zeldin, a Boston lawyer who represented the plaintiff, said her client is deeply upset by the result, especially because the biological mother has said she planned to end the temporary court-mandated visitation if she prevailed in the SJC.

"It's very sad for this child," Zeldin said.

The full names of the child and the parties were withheld by the court, and the parties were identified only by initials.

Jennifer Levi, senior staff attorney for Gay & Lesbian Advocates & Defenders, criticized the decision for depriving a child of a "parentlike relationship" that had been established with the plaintiff.

Many adults form parental bonds with children and, for whatever reasons, fail to take the steps toward adoption, she said. "The child shouldn't take the fall for the legal missteps of the parents."

Zeldin said her client never thought her parental rights were in jeopardy. The couple began their relationship in 1995 and bought a house together in 1998. They jointly decided to have a child together and were declared Parent 1 and Parent 2 in the fertility clinic they visited. The child was born in October 2001.

Within the next year, as the plaintiff was working hard at her job, her relationship with her partner deteriorated. She put off the legal paperwork to adopt the baby. Later, as a legal battle ensued over parental rights, the plaintiff argued that her past financial contribution should be counted as a form of parentlike giving to the child.

Hurley and Foskett, however, said the court only gives de facto parental status to those caregivers, such as grandparents or longtime family friends, who are irreplaceable in the eyes of the child who has closely bonded with them. They do not count breadwinning the same as time spent caretaking.

Also, they disputed the plaintiff's lawyer's assertion that the biological mother will terminate all contact between the plaintiff and the child.

Hurley said the biological mother, like all parents, "will determine what's in the best interests of her child."

Patricia Wen can be reached at wen@globe.com.