Montana Supreme Court Affirms Parental Rights and Property Settlement for Lesbian Co-Parent

The Supreme Court of Montana ruled 6-1 in Kulstad v. Maniaci, 2009 WL 3179441 (Oct. 6, 2009), that a lesbian co-parent who had formed a parent-child relationship with the two children who had been adopted by her former partner was entitled to a parental interest (decision-making authority and visitation) after the termination of the relationship. The court also affirmed the trial court’s decision to apply equitable principles to compensate the co-parent for her financial contribution during the ten-year relationship, awarding a lump sum payment as well as ownership of one of the couples’ two motor vehicles.


The Alliance Defense Fund, a right-wing anti-gay litigation group, joined in representing the legal mother, and having made the argument that the statute under which the court determined Kulstad’s parenting rights was unconstitutional, one can anticipate that they will attempt to get the U.S. Supreme Court to review the constitutional question. Representing the co-parent, successfully defending her trial court victory, was the ACLU of Montana.  The key issue is whether a court can require a fit legal parent to yield parental rights to a "third party" who is not legally related to a child. ADF convinced at least one of the seven members of the court, as Justice Jim Rice filed a lengthy dissent, vigorously contesting the constitutionality of the statute, which was enacted in 1999.


The case drew five amicus briefs, likely an unusual show of interest for an appeal pending in Montana’s high court. The Montana Family Foundation and the Pacific Justice Institute weighed in on behalf of the legal mother. A professional associations brief representing the National Association of Social Workers and the American Academy of Pediatrics, together with briefs from a group of Montana law professors and from the Northwest Women’s Law Center, were submitted on behalf of the co-parent.


Writing for the court, Justice Brian Morris began with an unusual introductory statement. "Far too often this Court faces a situation in which minor children have no adult fit to parent them. This case presents the increasingly unusual situation of two adults fit to parent minor children, L.M. and A.M." The trial court had awarded "a parental interest in the minor children to Appellee Michelle Kulstad over the objection of the Appellant Barbara L. Maniaci. The court also awarded Kulstad an interest in personal and real property." Maniaci had appealed the trial court’s rulings, except for its ruling that it could not grant a divorce because the alleged "common law marriage" of the parties was not recognized in Montana.


Justice Morris relates that the women met in late 1995, at a time when Maniaci was living in a trailer on her sister’s property and working part-time as a chiropractor out of her sister’s house. Kulstad, then living in Seattle, Washington, was supporting herself on savings while undertaking various business ventures. As the relationship deepened, Kulstad moved to Montana to live with Maniaci, and the women exchanged rings in a ceremony on March 18, 1996 - rings which they wore until the relationship fell apart in the fall of 2006, more than ten years later.


During the intervening years, Maniaci bought property to construct a house, but ran out of funds and Kulstad ended up paying for much of the balance, also lending a personal hand in construction projects. One of Maniaci’s chiropractic patients asked if the women would like to adopt her great-grandson, whose mother was not doing a capable job. The women agreed, although due to limitations of Montana adoption law only one could be the legal adoptive parent, and Maniaci took that role. Later, Maniaci adopted a second child, a girl from South America. In both cases, Maniaci told the professional doing the home study leading to the adoption that she and Kulstad were partners and would raise the children together. And so they did, sharing parenting responsibilities and making various legal arrangements tending to document a joint parenting venture.


However, as these things sometime happening, the relationship of the women turned sour, Kulstad was barred from the house and contact with the kids, and filed her divorce action in January 2007, seeking a parenting interest and a property settlement. The Missoula county District Judge Edward P. McLean appointed a guardian ad litem for the children, appointed a court expert (whose testimony was supplemented by experts presented by both sides in the litigation), and conducted hearings to determine how to proceed. Having determined that there was no legally-recognized marriage to dissolve, he rejected the divorce petition, but concluded that Kulstad was entitled to a declaration of "parental interest" under the Montana statute concerning third party parenting rights, and that under the court’s equitable powers she was also entitled to a property settlement upon the dissolution of the relationship.


The court accepted the view of its expert and Kulstad’s expert that Kulstad did have a parent-child relationship with both children sufficient to meet the statutory requirement, and that Maniaci’s conduct was inconsistent with her assertion that she was the sole parent of these children. It also found the contrary view of Maniaci’s expert, a geriatrician with no background dealing with children, to be not supported.


The main legal issue on appeal was an attack on the constitutionality of the statute. Maniaci argued that awarding parental rights to Kulstad violated Maniaci’s due process liberty interest as a parent. In cases dating back to the 1920's, the U.S. Supreme Court has ruled that the natural or legal parents of children have constitutional rights concerning the care and raising of their children. Maniaci relied heavily on the 2000 decision in Troxel v. Granville, where the Supreme Court held unconstitutional a Washington state statute that authorized awarding visitation rights to grandparents over the objection of a child’s parent. Indeed, the Washington statute broadly authorized courts to grant visitation rights to third parties if the court that it was in the child’s best interest, with little guidance or constraint.


The Montana court found that the Troxel precedent did not mandate a finding of unconstitutionality in this case, pointing out that the statute is more narrowly focused on preserving existing parent-child relationships. In so holding, the court refused to read into the statute a requirement that the legal parent be found to be unfit to exercise parental rights before a third party could be accorded such rights.


The court also found that the trial judge had correctly exercised equitable powers to award a financial settlement to Kulstad, finding that the trial record indicated she had made substantial financial contributions to finishing construction of the house for the benefit of the family, and had also played the main role in maintaining their automobiles.


Justice James C. Nelson wrote a brief, emphatic concurring opinion, venturing onto the topic that was barely alluded to by the Supreme Court: that this case involve "homosexuals in an intimate domestic relationship," a fact that Nelson called "the elephant in the room." Nelson, who had written a stirring pro-gay declaration in an early Montana Supreme Court case, offered a repeat performance here. "Sadly," he noted, "this case represents yet another instance in which fellow Montanans, who happen to be lesbian or gay, are forced to battle for their fundmantal rights to love who they want, to form intimate associations, to form family relationships, and to have and raise children – all elemental, natural rights that are accorded, presumptively and without thought or hesitation, to heterosexuals."


He argued that the court’s ruling was "grounded in the statutory scheme," and asserted, "I remain absolutely convinced, nonetheless, that homosexuals are entitled to enjoy precisely the same civil and natural rights as heterosexuals as a matter of constitutional law," and recalled his "special concurrence" in the earlier case, which involved partner benefits at the state university.


"I stand by my concurring opinion," he wrote. "Unfortunately, though, nothing has changed. I am convinced that until our courts, as a matter of law, accept homosexuals as equal participants with heterosexuals in our society, each person with exactly the same civil and natural rights, lesbian and gay citizens will continue to suffer homophobic discrimination. Regrettably, this sort of discrimination is both socially acceptable and political popular. Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry. And, whether rationalized on the basis of majoritarian morality, partisan ideology, or religious tenets, homophobic discrimination is still bigotry. It cannot be justified; it cannot be legalized; it cannot be constitutionalized."


One suspects that this concurrence was as much a response to the Alliance Defense Fund’s participation on the side of Maniaci as it was to Justice Jim Rice’s dissenting opinion, which accused the court of retreating from "its clear declaration of the fundamental constitutional rights of parents" in prior cases. He accused the court of opening up a "Pandora’s box" of potential attempts by unrelated third parties to attack the rights of parents "to raise their own children." This caricatures the court’s opinion, which insisted upon a firm showing of an existing parental relationship prior to the filing of a parenting interest petition.


The likelihood that the Alliance Defense Fund, armed with this dissent, will try to obtain U.S. Supreme Court review, seems high. An interesting sidelight of the case is that Justice Morris, author of the court’s opinion, clerked for the late U.S. Supreme Court Chief Justice William Rehnquist and conservative Judge John Noonan on the U.S. Court of Appeals for the 9th Circuit, neither of whom, one suspects, would have been particularly enamoured of his opinion in this case.


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