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Montana Judge Upholds Parental Rights of Woman’s Female Ex, Denounces Homophobia

by Kilian Melloy
Friday Oct 9, 2009
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At one time, Barbara Maniaci and Michelle Kulstad were two mothers to a pair of adopted children.

But the women’s decade-long relationship ended, and now Maniaci, who legally adopted the children, has gone to court--twice--to exclude Kulstad from custody rights.

Maniaci, who married a man after the first court ruled for Kulstad, appealed the case to the Montana state supreme court, but she and her new husband lost that case as well.

What’s more, a state supreme court justice issued a strongly-worded condemnation of homophobia in his opinion, calling it a "societal cancer."

The appeal followed an initial ruling by District Judge Ed McLean, who found for Kulstad in a case that had attracted the attention and support of anti-gay conservative organizations and of liberal groups alike.

The argument presented by Maniaci’s attorneys was that Maniaci and her husband had the right to raise the children without Kulstad in the picture.

An Oct. 3 Associated Press article reported that a lawyer for the conservative Alliance Defense Fund, Auston R. Nimocks, claimed that allowing the original decision to stand, allowing Kulstad joint custody, was tantamount to "undermining" families.

The article quoted Nimocks as saying, "Undermining the rights of fit parents harms families and children.

"Fit parents have the right and duty to raise their children, and the U.S. Supreme Court has repeatedly upheld that right."

Nimocks denied that sexual orientation motivated the case.

"If Miss Kulstad was a man, we would still be in the case and making the same arguments," stated Nimocks.

"Are we going to start granting ex-boyfriends and ex-girlfriends parental rights just because they lived under same roof? If so, how far do we go?

"Granting acquaintances and roommates parental rights over the objections of fit parents is a very dangerous precedent."

However, the long-term nature of the women’s earlier pairing, as well as the pre-existing bond between Kulstad and the children, were crucial elements in the case.

Said Kulstad’s attorney, Susan Ridgeway, "She’s the second parent of these children; she’s not the fifth boyfriend of the parent."

Added Rideway, "She made a commitment to be a parent, and she’s proven that she’s had a parent-child relationship with the children."

An Oct. 7 article at The Missoulian reported that the ruling was reached with six of the court’s seven justices in agreement.

The lone dissenter, Justice Jim Rice, echoed the arguments made by the Alliance Defense Fund’s attorney.

Wrote Justice Rice, "Now, even parents who are fit and capable ... are potentially subject to the claims of third parties for rights to their children."

Predicted Justice Rice, "Consequences of geometric proportion will fall in the future upon many fit parents."

But Justice James Nelson wrote a separate document, a concurrence, in which he spoke out against homophobia.

Wrote Nelson, "Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry.

"Lesbian and gay Montanans must not be forced to fight to marry, to raise their children and to live with the same dignity that is accorded heterosexuals."

A separate article at The Missoulian on the same day quoted Justice Nelson further; he also stated that homophobia is "a prevalent societal cancer grounded in bigotry and hate."

Added Justice Nelson, "I remain absolutely convinced ... that homosexuals are entitled to enjoy precisely the same civil and natural rights as heterosexuals, as a matter of constitutional law."

The majority opinion was set out by Justice Brian Morris, who referred to existing state law that recognizes a "parenting interest" might exist for an individual who is not a legal or biological parent but who has developed a parental bond with a child.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor, writing about film, theater, food and drink, and travel, as well as contributing a column. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.

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