It's the judges who need a legal guardian

Rule of law in this country has been replaced by rule of judges.

In case after case, citizens have watched as judges assumed sovereignty and ruled, like Humpty Dumpty, that the law is "just what they choose it to mean - neither more nor less."

The latest case of such legal hubris comes from Missoula, Montana, where a judge has ruled that a parent is whoever he decides is a parent, regardless of what the law says.

Here, in summary, is the case:

Barbara Maniaci adopted two children, a son in 2004 and a daughter in 2006, while she was engaged in a live-in partnership with another woman, Michelle Kulstad. The two women had lived together in the Missoula area for about 10 years before breaking up in 2006, but Maniaci had adopted the children on her own as a single parent. Maniaci later married a man and expected to raise her two children with her husband as she saw fit, but Kulstad had other ideas. She went to court and sought joint custody of the children, arguing that she had been like a mother to the boy and girl. On Monday, Sept. 29, District Judge Ed McLean ruled in favor of Kulstad.

Using language that clearly was intended to shame Maniaci and the rest of us who believe in common sense, McLean wrote, "To discriminate further against Ms. Kulstad because of her sexual preference in this day and age is no different than telling a person to go to the back of the bus because of her skin color."

Huh? Say what?

This wasn't a case about sexual preference; it was a case about adoption law - about what the law permits and what it doesn't permit. And the judge clearly overstepped his bounds.

What should have been at play was the fact that Maniaci of her own free will adopted two small children. She went through the appropriate legal process to do so, and with Ms. Kulstad's full understanding that only Maniaci was the legal parent. In everyone's mind except Judge McLean's, it is quite clear that saying you are a parent does not make you one. And shacking up with someone, whether of the same sex or not, should not be seen as a way to bypass adoption law in order to sneak into a parental relationship with someone else's children.

Maniaci's lawyers wasted no time in appealing the case to the Montana Supreme Court, and one can only hope that wisdom will prevail over McLean's brief but harrowing reign as judicial despot.

The fact of the matter is the whole of the matter should have been resolved quite simply. There is plainly no statute that makes cohabitation a means to gain parental rights. Yes, hopefully, people who move into a household will be caring and nurturing of children who live with them, but in this age of liquid relationships, it makes no sense to confuse children with the possibility of serial parenthood as each new live-in boyfriend becomes the latest to gain custody rights.

And remember, what is supposed to prevail is the best interests of the child, not the best interest of former boyfriends and girlfriends.

No one is saying this is a case where Kulstad doesn't have an emotional connection with the children, and perhaps she could convince the children's legal mother, Barbara Maniaci, to allow her to visit occasionally as a courtesy. But that is a far cry from the court telling Maniaci, who followed the legal and proper procedure for adoption, that she must share custody with someone who avoided a legal connection with the children until she decided it was convenient to have one.

Perhaps there is no simple solution in matters of family law. That is understandable. You are dealing with real people, not corporate entities. But there are clues in the law that suggest McLean was wronghjeaded in his judicial reasoning. Take Title 40, Section 4, Part 228 of the Montana Code Annotated, for instance. Therein, it is plainly established that when a nonparent seeks to establish a parental interest in a child, they must first prove by "clear and convincing evidence" that "the natural parent has engaged in conduct that is contrary to the child-parent relationship."

Although adoptive parents are not "natural parents," they are given by law the same rights and responsibilities, and thus the court should have held Kulstad to the standard of proving that Maniaci had proven herself unfit to be a mother. Lacking that, Kulstad should have been told that the court did not have authority to substitute its judgment for the placing agency which had found Maniaci to be a suitable parent, in herself and on her own.

In the trial, Kulstad reportedly told the court that she was not listed on the children's adoption records "because it is illegal in Montana for same-sex couples to adopt." That might give her argument a little more weight, and might even make the judge's over-the-top language seem appropriate, but the fact of the matter is Kulstad's claim is not accurate.

According to Rose Saxe, an ACLU attorney from New York, (as quoted in an Associated Press article) "Montana law does not specifically address adoption by same-sex partners but does allow a step-parent or someone who functions as a step-parent to adopt."

If Kulstad chose voluntarily not to be part of the adoption proceedings in the first place, then she should forfeit the later right to claim to qualify for parental rights as a step-parent. Again, there is no reason why there should be a backdoor parental privilege granted in this case.

And most importantly, no one wants judges sticking their noses into family business. Unless the children's health and well-being were at stake, the judge should have let their mother decide what was in their best interest. As it stands now, it looks like the judge was more concerned about promoting a liberal social agenda than two happy, healthy children.

. Frank Miele is managing editor of the Daily Inter Lake and writes a weekly column. E-mail responses may be sent to edit@dailyinterlake.com