In a split decision in the case of a 5-year-old girl conceived in a lesbian relationship, the justices said Keri Lynne Jones of Taylorsville does not have the right to seek visitation with the child - even though Jones and her former partner decided to have her together, once raised her together, and gave her both of their surnames.
The girl's biological mother, Cheryl Pike Barlow, says she is no longer gay and doesn't want Jones - joined to her in a Vermont civil union - to see the girl.
While the case involves a gay relationship, Friday's ruling also applies to heterosexuals. An unmarried straight partner who has not adopted a child would also be barred from making their case in court, said Kathryn Kendell, executive director of the National Center for Lesbian Rights and a Utah native who argued Jones' case before the high court.
"It doesn't matter if they were a parent in the same household for two years, as in Keri's case, or 10 years," Kendell said. "If the adults split up and the biological parent says I'm cutting you off from any relationship with your child, the biological parent is perfectly free to do so under this majority ruling.
"I cannot imagine anyone except the most ardently anti-gay foe thinking it is a good outcome for children, when their parents split up, to be cut off from a person they have bonded to and loved as a parent. It is unconscionable."
Yet those like attorney Frank Mylar, who represented Barlow in the case, have said that to rule otherwise would trample parental rights. Mylar has argued biological parents must have the ability to sever both their own and their child's relationships with those they have chosen not to marry and who have not adopted their child.
Mylar was traveling in India on Friday and was unavailable for comment on the ruling. But the Alliance Defense Fund, which litigates cases involving religion, and is affiliated with Mylar on the case, released a statement calling the ruling an affirmation of parental rights.
"Protecting the well-being of a small child trumps the desire of a legal stranger to usurp the care and protection of that child's mom," said ADF Senior Counsel Joe Infranco in the statement. "The Utah Supreme Court ruled correctly in affirming Cheryl Barlow's right as a natural parent and putting an end to visitation with a woman who has no legitimate legal relationship to the child."
Friday's majority opinion reverses a decision by 3rd District Court Judge Timothy Hanson granting Jones visitation with the girl under a common law doctrine known as "in loco parentis," in which a person acts as a parent although they have no blood or legal ties to a child.
Hanson ruled the doctrine applied to Jones and awarded her visitation, saying the girl would benefit "both emotionally and financially" from the contact. Hanson determined Jones had been 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, the judge said.
The women broke up when the girl was 2, after Jones had an affair with another woman.
Hanson gave Jones visitation with the girl every other weekend, which was cut short late last year when Barlow, who now lives in Texas, was held in contempt of court for refusing the visitation.
Recognizing a "new class of parents" would "overstep" the bounds of the courts and invade the territory of lawmakers, said the majority of the high court Friday. The in loco parentis relationship can be easily terminated by biological parents like Barlow, the said.
"On the one hand, we recognize that mutual bonds of affection can be formed between a child and an adult who does not fit within the traditional definition of a parent and that such a relationship has the potential to enrich the lives of both the surrogate parent and the child," wrote Justice Jill N. Parrish for the majority. "However, in carving out a permanent role in the child's life for a surrogate parent, this court would necessarily subtract from the legal parent's right to direct the upbringing of her child...."
Chief Justice Christine Durham dissented, saying the case was like a typical divorce where two parents are quarreling over child custody and visitation.
The civil union in Vermont showed that both women intended Jones to be a parent to any children born to them, Durham wrote. Barlow also designated Jones as the child's legal co-guardian.
Durham stressed that the ultimate issue is what is in the best interest of the girl. As the nontraditional family becomes more prevalent, more children will form parent-child relationships with adults who have no biological or legal connection to them, she wrote.
The child "ought to be protected from losing a relationship with someone who is, as far as the child is concerned, a parent," Durham wrote.
Jones said Friday she is devastated for both her loss and what the little girl who knows her as her mother will now go through.
"Someone is going to have to explain this to her," said Jones. "She doesn't understand. There is nothing in her little body that tells her we are not related...I can blame people and say they are the reason we are not going to be together. But she is not going to understand it."
Jones said the ruling will affect other non-traditional kinds of families, including step parents and grandparents.
"There has to be room for different kinds of families."
Kendell criticized the majority ruling as an abdication of the court's role to protect those who have no other recourse. For gays, marriage, or adoption to ensure parental rights are not an option as it might be for others.
"I grew up Mormon in Utah," said Kendell. "I understand Utah family values. To have a ruling place the parent-child relationship in such a vulnerable and fragile place is contrary to everything I grew up understanding about family value and the importance of enduring relationships."
The ruling, Kendall said, leaves Utah in the minority of states who have taken this position. At least a dozen states have ruled otherwise when presented with the same question, she said.
Barlow, once known as a gay rights activist in Utah, had warned that a ruling against her would open the way for gay adoption and marriage. She had argued she was the primary caretaker of her daughter as a stay-at-home mother and that Jones had little to do with raising her daughter and had a hard time with visitation.
No so, said Jones, who points to the time she spent with the girl and recommendations for visitation by both the Guardian ad Litem's office and professionals who have have evaluated and spent time with the girl.
Judge Hanson had awarded Jones two days a month and Christmas Day visitation, with visitation increasing to alternating overnight weekends this summer.
- Tribune reporter Pamela Manson contributed to this report.