Idaho high court: Unmarried gay partner has no custody right

Via the Spokesman Review

Here’s a news item from the Associated Press: BOISE, Idaho (AP) — The Idaho Supreme Court has denied custody and visitation rights to a gay woman who raised a child with her former partner. In the ruling handed down Wednesday, the unanimous court said that because Jane Doe’s former partner is the one who was artificially inseminated and conceived the baby, and because the two women weren’t married, Jane Doe has no parental right to the now-7-year-old child. Jane Doe is an alias often used in custody cases to protect the identity of any children involved. Cathy Sakimura, an attorney with the National Center for Lesbian Rights which represented Doe in the case, said the ruling was devastating to Doe and her child. She said it was out of step with the way most states are treating LGBT parents and their children. The attorney representing the biological child’s mother did not respond to a request for comment.

The unanimous opinion, authored by Justice Robyn Brody, focused not on the fact that the pair were a same-sex couple, but on the fact that they weren’t married, nor had the partner adopted the child; same-sex marriage became legal in Idaho in October of 2014. “Partner does not have a legally recognized, protected relationship with Child,” Brody wrote.

“The plain language of the statute simply does not address a situation like at issue here where a child is conceived through artificial insemination by an unmarried couple,” she wrote; you can read the eight-page opinion here.

Brody rejected the argument that a 1989 decision regarding custody rights after a divorce opened the way for the partner, in this case, to argue for custody rights, which the birth mother opposed. “This Court understands that family structures are changing, but it is not the role of this Court to create new legal relations,” Brody wrote. “That is the business of the Idaho Legislature.”