Delaware Supreme Court rejects co-parent custody case between lesbian moms

Gay City News reports that the Delaware Supreme Court unanimously ruled on February 3 that the lesbian co-parent of a child adopted by her partner did not have standing to seek custody or visitation when she and her partner ended their relationship 13 months after her partner adopted their child. The ruling reversed a 2007 Family Court ruling in New Castle County, and found that the Legislature, not the courts, must determine whether a de facto parent should be allowed to seek custody or visitation.

The court left open the possibility that state law might be construed to recognize a co-parent’s legal rights if he or she had lived with the child for their first two years of life.

In 2003, nine years after becoming a couple and with several unsuccessful efforts at artificial insemination behind them, the women, identified in the court opinion by pseudonyms, decided to adopt a child in Kazakhstan, a nation that does not allow an unmarried same-sex couple to jointly adopt. The non-adoptive parent cared for the child during its first two months in the US.

An attorney advised the couple that the non-adoptive mom could not proceed with a second-parent adoption for a year, by which time the couple had decided to split up. Several weeks after the co-mother moved out, the adoptive mother cut off her contacts with the child.

The New Castle County court found that the non-adoptive mother was not a legal parent but had a legitimate claim to custody and visitation as a de facto parent. Even though the state high court rejected the Family Court’s finding, it applied a gender-neutral interpretation to statutory language that “a man is presumed to be the father of a child” if he lives in the same household for the first two years of their life, and intimated that the non-adoptive mother could have used this provision had her time living with the child been longer.

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