This is an archived article that was published on sltrib.com in 2004, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
After considering Utah law and the best interests of a 3-year-old girl, 3rd District Judge Timothy Hanson has decided the child is better off with two mothers.
One is her birth mother, who conceived her through artificial insemination while in a lesbian relationship. The other is the birth mother's former partner, joined to her in a Vermont civil union before the girl's birth.
Hanson ruled state laws allow the former partner to maintain a parent-child relationship with the girl through visitation. The case is now before the Utah Court of Appeals, which will examine how much protection Utah law provides to gay or unmarried couples raising children related to only one partner.
The conservative Alliance Defense Fund, which litigates cases involving religion, publicized its role in the case Tuesday by describing it as a battle for parents' rights waged by a churchgoing woman who has abandoned her lesbian past.
But Hanson has said the case does not turn on the debate over gay marriage or gay adoption.
"What this case is about, is whether or not a child is better off in this rather uncertain world, with as many people as possible taking an interest in the child, both financially and emotionally," the judge said in an October court hearing.
"I do not believe that any clear-thinking person could rationally say that a child is not better off with as many people who care about that child as part of her life," he said.
Last week, the judge signed an order granting supervised visitation to Keri Lynne Jones, of Taylorsville, on two days a month and on Christmas Day. After six months, visitation will increase to alternating overnight weekends, and Jones will be required to support the child financially.
Cheryl Pike Barlow, the girl's birth mother, wants the appellate court to overturn the visitation order. In court filings, Barlow says she is no longer a lesbian and now has religious objections to exposing her daughter to her former partner's gay lifestyle.
Jones and Barlow were joined in a Vermont same-sex union when Barlow was five months pregnant in 2001. Barlow gave birth to the girl that October. The couple broke up two years later, after Jones had an affair with another woman, according to court documents.
Judge Hanson had ruled in October that Jones would be eligible for visitation if she could establish she had a parent-child relationship with the girl. He cited Utah case law on the doctrine of "in loco parentis," in which a person acts as a parent although they have no blood or legal ties to a child.
Hanson pointed to a 1978 Utah Supreme Court ruling that supported a stepfather's bid to seek visitation.
"The court sees no legal reason to discriminate in applying the doctrine . . . to a couple who are in a committed lesbian relationship," he wrote. "The heterosexual or homosexual relationship between the two adults is irrelevant to the doctrine of in loco parentis."
Following a trial, Hanson agreed the girl would benefit "both emotionally and financially" if she were allowed contact with Jones. In making the ruling, the judge said Jones was an "equal partner" in the decision for Barlow to have a child, sharing in the selection of the sperm donor.
Jones participated in the child's birth and care, and became a co-guardian of the girl, who had the surnames of both women on her birth certificate, the judge said.
Attorney Frank Mylar, who is affiliated with the Alliance Defense Fund and represents Barlow, says Hanson has done an end-run around Utah laws. Mylar said in loco parentis only applies to cases where the parent is absent from the child's life.
"Where does it end, when you have a legal stranger that is not related by blood, marriage or adoption, and they are claiming rights to your child?" he asked. "Anyone who is a fit parent has a constitutional right to say how their child is to be raised, and what associations they are to have."
Jones' attorney, Lauren Barros, says Hanson did not pave new legal ground, but simply applied existing Utah case law. The point of such rulings, she argued in court filings, "is to protect children's relationships" with those who have acted as their parents.
Barros points to a U.S. Supreme Court ruling she says allows courts to protect a child's relationship with a parental figure. She said a former partner who petitions for visitation must prove the couple intended them to have a child-parent relationship.
That was the case for Barlow and Jones, Barros said.
"They had done all these things that intended to create a family," she said. Barlow had asked the appeals court to halt visitation until the case is decided, arguing Jones has had no significant contact with the child in over a year. The girl "does not take well to strangers" and is already getting a new day care provider, she said.
But in issuing a one-page ruling Friday, Court of Appeals Judge Gregory K. Orme declined.
He cited the "careful, measured way the trial court has crafted the visitation order," and said "any creation of harm is itself speculative."
Barlow also argued Hanson's ruling interferes with her constitutional rights to raise her child as she sees fit. "I want what is best for my child," she said, "and I know in my heart that my child should not have contact with Ms. Jones at this time."