Wednesday, May 17, 2006

Case Law Development: Supreme Court Rejects Hearing Gay Custody Dispute

On Monday, the Supreme Court denied a Writ of Certiorari in Breitain v. Carvin, 05-974 (May 15, 2006), a case involving a lesbian who sought to bar her former partner from visitation with a child the former partner had helped to raise.  In 2005 the state of Washington's highest court said the former partner could pursue ties to the girl as a “de facto parent.” The girl was 6 when the relationship ended, she is now 11.

In the 2005 decision, the state court held that a common-law claim of de facto or psychological parentage exists such that the former partner can petition for shared parentage or visitation with the minor child. It said that “reason and common sense support recognizing the existence of de facto parents and according them the rights and responsibilities which attach to parents in this state. We adapt our common law today to fill the interstices that our current legislative enactment fails to cover in a manner consistent with our laws and stated legislative policy.”

In formulating a criteria to be applied upon remand, the Washington court relied primarily on a Wisconsin decision,  H.S.H.-K., 533 N.W.2d 419 (1995) and held that a petition for co-parenting or visitation will not be entertained unless the petitioner proves the existence of the following:  (1) the natural or legal parent consented to and fostered the parent-like relationship, (2) the petitioner and the child lived together in the same household, (3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature. The State of Washington Supreme Court opinion may be found at 122 P.3d  161 (Wash. 2005). News source:  Gina Holland, Associated Press, boston.com. The complete news article regarding this case can be found by clicking here (last visited May 17, 2006, reo).

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