Protecting parenthood

The Montana Supreme Court has a chance to set right a monumental injustice, and this time what hangs in the balance is not the fate of a death-row inmate, but something just as important - the future of the American family.

Barbara Maniaci is asking the high court to come down from the mountain with the legal equivalent of the Ten Commandments, or more particularly the traditional Fifth Commandment: "Honor thy father and mother."

What she hopes for from the distinguished justices is no less than a promise that the state of Montana will, must and should "honor the mothers and fathers' of all legally recognized families, and shall not take away inalienable parental rights or bestow them upon others because of a political agenda that would allow gay rights to trump family law

Yet Dr. Maniaci must have precious slim hope indeed, based on what has happened to her so far in district court, where politics, not law, was the basis for a ruling that forced her to share her adopted children with a woman who for all intents and purposes was a legal stranger to them.

Maniaci and Michelle Kulstad had lived together as a couple for 10 years, starting in 1995 or 1996. Late in that time period, Maniaci legally adopted two children, a son in 2004 and a daughter in 2006. Kulstad and Maniaci were never legally married, nor did Kulstad adopt the children herself. Yet when the relationship between the couple ended in 2006, Kulstad sought joint custody of the children, one of whom she barely knew.

Maniaci, meanwhile, had later married a man and expected to raise her two children with her husband as she saw fit, but Kulstad's court action instead turned this family upside down just as District Judge Ed McLean's decision of Sept. 29, 2008, turned logic upside down. McLean awarded Kulstad a parental interest in the children, with joint decision-making authority and regular visitation, despite the clear fact that she was never married to Maniaci, was never a legal guardian of the children, and had no more standing than any ex-girlfriend.

As I have written before, there is 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 transient 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 permanent custody rights.

How exactly can the court be representing the best interests of the children if it treats them as property to be divided up between any number of former boyfriends and girlfriends of legal parents? Plainly the court cannot do so unless we view the law as Silly Putty to be stretched into any shape necessary to advance a political agenda. One parent cannot and must not be able to confer parental rights to another person without following the prescribed legal process.

Title 40, Section 4, Part 228 of the Montana Code Annotated states 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." There is no evidence of any such conduct on the part of Maniaci. Indeed, the only evidence that could be mustered is that Maniaci broke off her lesbian relationship with Kulstad and thus deprived her children of a continuing relationship with a woman who had formerly assisted in their upbringing.

But do we really want courts putting their stamp of approval on whether we may or may not break up with live-in lovers? Is their any remotely reasonable explanation in law for how the once inalienable rights of parents to raise their children as they see fit became instead dispensable rights? Do the Constitution's guarantees against an intrusive, invasive government now mean nothing?

Some might want to phrase this as a battle between traditional families and untraditional families, between heterosexual marriage and gay marriage, but that is an inappropriate distinction to make in this case. Here, we are only interested in the difference between a legally recognized adoption and an effort to hijack parental rights through cohabitation.

Mind you, there has been considerable talk about Kulstad's supposed "rights' as a lesbian, but that talk is again nothing but an effort to force the legal facts into a politically correct framework where it can be claimed that Kulstad is a "victim" because she is gay.

Judge McLean went so far as to write in his decision that, "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."

Sorry, Judge McLean, but that is not germane to the case. And for the judge to even talk about sexual preference is clear evidence that McLean made his ruling outside the basis of law, because this case was never about discrimination; it was about whether or not Kulstad could prove a parental right to these children.

It is certainly no accident, however, that Kulstad's attorneys from the American Civil Liberties Union have turned her case into a "cause celebre" for gay rights. Indeed, this is just one of several cases being argued across the country that challenge society's traditional definition of marriage and question the state's ability to limit parenthood to either single men and women or to married heterosexual couples.

In a Florida case with striking similarities to Maniaci v. Kulstad, a woman wants to be recognized as a second parent of the biological child of her former same-sex partner. A lower court refused to recognize a same-sex adoption from another state because Florida law does not permit same-sex adoption, yet the case is being made that Florida doesn't have the right to set its own standards in this matter, but rather must follow the moral precepts of Washington state instead.

In another case, a California court granted parental rights to a woman who had been in a same-sex relationship with a woman who became a mother prior to breaking off the lesbian affair. After the mother and child moved to Alabama, that state's Court of Appeals held that California parental law must be recognized by Alabama even though Alabama's marriage policy clearly affirms that marriage is between one man and one woman.

Similar cases are being heard in courts throughout the country. And in all of them, the common thread is that social activists want to change state policy not through legislation but by convincing a handful of judges to impose their will on society.

Let's hope the Supreme Court of Montana, which heard the case on Friday, will put an end to such efforts here. If Montana wants to recognize same-sex marriage or grant adoption rights to gay men and women, it can do so - through the law-making powers of the Legislature. In the meantime, everyone should be following the same rules. That means judges should apply the law as it is written, not as they envision it, and for that reason alone, Maniaci must prevail.

- 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