Idaho high court: Unmarried gay partner has no custody right

BOISE, Idaho – The Idaho Supreme Court has denied custody and visitation rights to a gay woman who raised a child with her former partner, reflecting state laws that have not been updated since same-sex marriage became legal in 2014.

The couple raised the child together after splitting up in 2012. But their relationship deteriorated two years ago, and the child’s biological mother barred her former partner from contacting the child, who is now 7.

Grandparents, great-grandparents and even first cousins in Idaho can seek custody, guardianship or visitation rights to children in certain circumstances, but an unmarried same-sex partner cannot. But they can legally adopt if the other parent agrees.

Several states, including New Mexico, Washington and Nevada, allow women or men who consent to another woman’s insemination to be legally considered the child’s parent, even if the couple is not married, according to the National Center for Lesbian Rights.

But a few states, including Idaho, are far more restrictive. Utah, for instance, prohibits anyone who lives with an unmarried partner, same-sex or not, from adopting.

In the Idaho ruling Wednesday, the high court decided unanimously that the woman identified only as Jane Doe has no parental rights to the 7-year-old child because her former partner is the one who was artificially inseminated and carried the baby and because the two women were not married.

The alias is often used in custody cases to protect the identity of children.

Cathy Sakimura, an attorney with the National Center for Lesbian Rights that represented Jane Doe, said the ruling limits the ability of unmarried parents of even straight couples to protect their relationship with their children.

“Obviously, we’re extremely disappointed by this outcome, which is devastating for our client and her child and completely out of step with the way the majority of states are treating LGBT parents and their children,” Sakimura said. “Even though you may not be married, or you may have used assistive reproduction, children have a right to have a relationship with their parents.”

The attorney representing the child’s biological mother did not return a phone call requesting comment.

According to the ruling, the couple began a relationship in 2006, four years before the child was born. The two later decided to start a family using an anonymous sperm donor.

The couple talked to an attorney about having the partner who was not artificially inseminated adopt the child, but they decided not to pursue it after the attorney said same-sex couples were prohibited from adoptions.

Both women attended prenatal appointments, and the partner was present during the birth in 2010. They raised the baby together and shared parenting duties when they broke up two years later.

In 2015, the child’s biological mother barred her former partner from contacting the child and rejected her financial support for the child, according to court documents.

That’s when the former partner petitioned a court for adoption, guardianship and visitation.

A magistrate court dismissed her claim to be legally considered a parent under Idaho’s artificial insemination laws, which state that an opposite-sex couple who has a child through that method can sign a form to establish legal paternity, but same-sex couples must go through adoption procedures.

But the judge kept a visitation order in place.

Both sides appealed, and the Idaho Supreme Court agreed that the former partner had no parental rights. It also terminated her visitation rights.

“Mother made the decision to terminate the relationship between child and partner. She had that right, and while there may be a temptation to second-guess that decision, courts cannot do so,” Idaho Supreme Court Justice Robyn Brody wrote for the court.

Same-sex marriage wasn’t legal in Idaho until two years after the couple split. Though some state agencies have updated policies to reflect the change, many laws have not been similarly revised.

The state has no laws allowing same-sex partners to seek the same rights as certain relatives to custody, visitation or guardianship unless they are biologically related or adopted the child.

“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.”