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BY DANIEL D. LEDDY JR.
A Washington State court has redefined parenthood. On
May 15, the U.S. Supreme Court declined to hear an appeal by the biological
mother of an 11-year-old child from a controversial decision handed down last
year by the Washington State Supreme Court.
But that court had created a new
category of parents and endowed them with all the rights and privileges that
attach to natural parenthood.
Under the Washington ruling, the mother’s former
lesbian partner secured the right to prove that she is a de facto parent of the
child who was conceived by artificial insemination while the two women were
living together. The refusal by the nation’s highest court to consider the
matter is especially unfortunate since bedrock legal principles of family law
are increasingly at risk of radical alteration by activist state judges
advancing their own social agendas under the guise of interpreting the laws and
constitutions of their respective jurisdictions.
After becoming involved in a
same-sex relationship in the summer of 1989, Sue Ellen Carvin
and Page Britain
began living together in September of that year. In 1994, the two decided that
they wanted to have a child. To that end, Britain was artificially
inseminated with sperm donated by a mutual friend. The child, identified in the
decision only as L.B., was born May 10, 1995.
The two women held themselves out
as a family and even arranged for the child’s school records to list both of
them as parents. Shortly before L.B.’s sixth
birthday, they ended their relationship. Soon thereafter, Britain began
limiting Carvin’s contact with the child, eventually
terminating it entirely in the spring of 2002. Carvin responded by initiating
court action to be declared a legal parent of the child under the Uniform
Parentage Act (UPA) or, in the alternative, to be adjudged a de facto parent
with the same legal rights enjoyed by Britain.
On Nov. 3, 2005, a sharply divided
court ruled in favor of Carvin, holding that even
though a plain reading of the Uniform Parentage Act didn’t support her claim
under it, she had the right to seek the status of de facto parent under Washington’s common law.
Why? Because, said the court, “reason and common sense support recognizing the
existence of de facto parents and according them the rights and
responsibilities that attach to parents in this state.”
The truth, however, is that the
outcome is both a classic and egregious judicial overreaching. The Uniform
Parentage Act sets forth specific requisites for establishing a mother-child
relationship. Carvin clearly did not fit under any of
them, a fact that the court had to concede. Since the Legislature expressly
included certain classes of individuals within the ambit of the statute, it is
reasonable to assume that it intentionally excluded those omitted.
The court however, wasn’t about to
let a co-equal branch of government stand in the way of achieving the result it
sought. So it reached the conclusion that the statute’s failure to expressly
exclude individuals in Carvin’s position provided it
with wiggle room to resort to the state’s common law.
The dissenting opinion, written by
Associate Justice James Johnson, correctly characterized the court’s ruling as
“unconstitutional and in derogation of rights of the mother because it
interferes with an admittedly fit parent’s fundamental right to make child
It has long been established that,
under the 14th Amendment to the U.S. Constitution, natural parents have a
fundamental right to raise their children as they deemed appropriate. An allied
presumption is that fit natural parents ordinarily act in their children’s best
interests. For this reason, the state is powerless to interfere with parental
judgments regarding their children absent extraordinary circumstances such as
actionable neglect or abuse.
The implications of this parental
right were illustrated in 2000 when the U.S. Supreme Court decided Troxel v. Granville, a grandparent visitation case that
also involved a Washington
After Brad Troxel,
the father of two daughters, committed suicide, their natural mother severely
restricted the girls’ visitation with their paternal grandparents whom they had
been visiting every weekend. Brad’s parents initiated an action under a Washington law that
authorized courts to accord visitation to “any person” if it would be in the
best interests of the child.
The court granted the grandparents greater visitation than the mother was willing
to accept, so she appealed. The case eventually wound up before the U.S.
Supreme Court, which held that Washington’s “breathtakingly broad” statute was
unconstitutional because, in failing to give due consideration to the wishes of
natural parents, it violated their right to control the upbringing of their
Under the Troxel
rationale, Carvin, a non-relative, cannot possibly
have a superior legal claim to a place in L.B.’s life
than the grandparents had with Brad Troxel’s
The Washington Supreme Court dealt
with this hard reality by ignoring it. They brushed aside the will of the
state’s elected representatives and circumvented clear federal constitutional
mandates. Thus, by high-handed judicial fiat, they created the category of de
facto parents, endowed it with the same rights accruing to natural parents, and
catapulted Carvin from her actual status as an
outsider with no definable legal rights into a position of asserting
entitlement to the new designation.
It may well be that the
precipitous removal of Carvin from L.B.’s life would be detrimental to the child.
If so, the
appropriate remedy is to provide her with visitation under a constitutionally
valid statute that requires due weight to be given to the natural mother’s
However, the tortuous path forged
by the court to create de facto parenthood for her is not only a glaring
example of judicial activism at its worst, but another illustration of a
runaway judiciary creating minefields for those who want to follow family law.
Daniel D. Leddy Jr. is a
retired family court judge.