October 7, 2008
Montana Trial Court Recognizes De Facto Parent
On September 29, 2008, a Montana trial court recognized that a same-sex partner could be recognized as a de facto parent to the children adopted by her partner during their relationship. Kulstad v. Maniaci, No. DR-07-34 (Mont. Fourth Dist. Ct. September 29, 2008).
Although the partner seeking custody rights did not formally adopt the children during their relationship (because Montana law prohibits same-sex adoption), she participated in raising the children and was an integral part of their lives on a daily basis. Id. at 7. The court recognized, however, that there is a special balance at issue here: the fundamental rights of the legal parent (the mother who had legally adopted the two children) and the fundamental rights of the children (to have their best interests considered). Id. at 21-28. In order to facilitate that balance, the court recognized that the non-legal parent in this case was a de facto parent to the children because she raised them as her own children and was held out (by both partners) as a parent to the children. Id. at 31. In fact, the legal parent "ceded some of her parenting authority " when she "represented to various persons . . . that they were adopting the children as a couple and intended to remain together as a family." Id. at 28.
Because both of the parties acted as parents to the children, the court granted the petitioner "joint decision-making authority regarding all significant matters affecting the children . . . ." Id. at 37.
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