Less than a week after District Judge Ed McLean awarded parental rights of her two young children to her former female partner, Barbara Maniaci appealed the decision to the state Supreme Court, her attorneys announced Oct. 3.
The case involves a 9-year-old boy and 5-year-old girl that Maniaci adopted with Michelle Kulstad before the couple split up in 2006; Maniaci later married a man and took custody of the children. In addition to being, by all accounts, the first same-sex custody case in Montana—a state that doesn’t specifically address the issue of parental rights in homosexual relationships—Maniaci’s use of the evangelical Alliance Defense Fund has made the proceedings one to watch.
“The entire opinion defies the rights of natural parents,” says Maniaci’s attorney, Austin Nimocks, of the McLean ruling. “If somebody who is a legal stranger to somebody else’s children has parental rights, where do we draw the line?…It’s an extremely dangerous precedent.”
Though the case behind it proves extremely unusual, McLean’s ruling, if upheld, could eventually outline the parental rights of same-sex partners in Montana and other states that neither recognize gay marriage nor civil unions. Yet, the appeal could take a long time to pass through a backlogged Supreme Court.
“I’m not terribly optimistic that this could be resolved for years,” says Kulstad attorney Susan Ridgeway. “I think it’s going to go on longer than anyone wants.”
The core issue argued during a May 22–23 trial in Missoula and in subsequent briefs was whether the couple’s live-in relationship allowed a parental bond to form between Kulstad and the children. If so, Montana law grants parental rights to the partner regardless of demographic variables within the couple’s relationship.
McLean agreed that the bond indeed formed and closed his findings with some stronger language. “To discriminate further against Ms. Kulstad because of her sexual preference in this day and age is no different than telling a person to go to the back of the bus because of skin color,” the judge wrote Sept. 29.
Nimocks plans to challenge McLean’s interpretation of the law, but also argues that the Montana code itself infringes on the federal rights of natural parents. He says sexual orientation did not play into the trial arguments and wonders why McLean made an issue of it in the ruling.
Ridgeway says the defense’s song sounded different during the trial, when Nimocks put an expert on the stand to argue the formative issues of having two maternal figures.