In February the Utah Supreme Court handed down a decision on whether an unmarried partner had standing to seek visitation rights. In Jones v. Barlow, Jones and Barlow had lived as a couple and held themselves out as a family. They planned children together (by artificial insemination) and had a child together. Barlow and Jones obtained a civil union in Vermont. Two years after the civil union and the first child, they split. Barlow cut off any contact between the child and Jones, who then sued for visitation rights. The trial court granted visitation rights under common in loco parentis doctrine. The Utah Supreme Court, 4-1, reversed the trial court, holding that there was no common law basis for a grant of visitation rights to one who was not relative of the child. (The holding is actually a bit narrower.) Chief Justice Durham dissented, arguing that the common law could support a de facto parent doctrine, allowing persons who are de facto parents to assert certain rights (and be forced to assume certain burdens). The opinions discuss at some length whether a workable standing test could be developed, and what the previous cases held. Fairly interesting even for those not taken by family law issues. (On the whole, Durham's dissent is more interesting and seems a more honest approach to the cases. That said, I do not think there is a common law doctrine which could do what she says, but then she fudges a bit on whether she thinks the de facto parent idea is already in the common law or should be created. I think one ends up with the latter.)
The decision is bad for gay parents in Utah of course. There have been recent changes in the adoption statutes, which may ameliorate. But I am not much for family law and can't really comment on whether and how far adoption could be used to solve some of the problems.
Here is the thing of interest to me about the case: although Jones and Barlow obtained a civil union, that fact plays no role whatever in the majority or dissenting opinions. Both note the fact and that the parties made no argument concerning the civil union. The decision to ignore the civil union surprised me. Perhaps there is a statute barring recognition? But that would have been noted by the court, as a reason to ignore the civil union had it been raised. Neither opinion gives any such suggestion. In any event, such a statute would certainly raise interesting questions under the Full Faith and Credit provision of the U.S. Constitution. I have been wondering why Jones' lawyers ignored that aspect of their case. It seems to me at least as promising as claiming a visitation right under loco parentis -- which would have required a significant expansion and revision of the doctrine to succeed. As long as one is asking the court to undertake a major change, why give up tools to achieve that end? Did Jones decide to sacrifice a line of argument for some other political goal? It is a problem that comes up on occasion even in commercial litigation - a client decides that victory has to be based on a particular analysis or that victory on a particular ground has too much long term negative risk. Fair enough. I suppose in criminal defense such decisions would be very rare indeed.
Jones had first rate lawyers on her case. I wonder if they will tell me; I'll ask.
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