State Supreme Court rules lesbian may seek parental rights

OLYMPIA – The state Supreme Court today ruled that a woman who raised a child from birth to age 6 while in a relationship with the girl's biological mother can seek rights as a "de facto parent," essentially creating a new class of parent in the state.

"Today we hold that our common law recognizes the status of de facto parents and places them in parity with biological and adoptive parents in our state," the court, led by Justice Bobbe J. Bridge, wrote in the 7-2 decision. "Neither the United States Supreme Court nor this court has ever held that 'family' or 'parents' are terms limited in their definition by a strict biological prerequisite."

Sue Ellen Carvin, who goes by "Mian," sued her former partner, Page Britain, in King County Superior Court in November 2002, alleging that Britain had unfairly cut off access to Britain's biological daughter, identified in court papers as L.B, now age 10.

The two had been together for about six years when they decided to raise a child together. Britain was artificially inseminated and gave birth in 1995. For the next several years, Carvin stayed home to raise the girl, who called her "Mama" and Britain "Mommy."

But a year and a half ago, Britain and Carvin split. Britain married the sperm donor and subsequently barred Carvin from seeing L.B.

The high court's ruling affirms a May 2004 ruling by the state Court of Appeals, which had ruled Carvin could seek parental rights to L.B. The three-judge panel found that while Carvin did not have standing under the state's Uniform Parentage Act, she could seek status as a "de facto or psychological parent" by presenting evidence of a parent-child relationship.

"With this decision, the Court has become a voice for my daughter and children like her," Carvin said in a written statement. "My hope is that we can now move away from the court process and on to the important work of raising our daughter."

Brian Krikorian, one of Britain's attorneys in the case, said he hadn't yet spoken to his client, but would recommend that they appeal to the U.S. Supreme Court.

"Imagine the Pandora's box that opens," said co-counsel Erica Krikorian. "Anytime somebody comes along and cohabitates — in a heterosexual or homosexual relationship — all of a sudden, add water and you're creating these rights. You have to be careful who you're letting your kids hang out with."

The state high court, which is also considering a landmark gay marriage case, remanded the case to trial to determine whether Carvin is L.B.'s de facto parent.

"We strongly urge trial courts in this and similar cases to consider the interests of children in dependency, parentage, visitation, custody, and support proceedings," the court wrote, and "to act on their behalf and represent their interests would be appropriate and in the interests of justice."

The court cited rulings in a handful of other states that recognized the parental rights of former homosexual partners.

The Massachusetts Supreme Court, for example, ruled that a lesbian who helped her partner raise a son had become a "de facto" parent and was entitled to visitation rights when the couple split up. The U.S. Supreme Court declined to hear an appeal of that case in 1999.

In his dissent, Justice James Johnson wrote that the majority failed L.B. by rewriting state parentage laws.

"Regardless of the various sexual orientation claims, the outcome must be that a mother has a fundamental right to make decisions for her child," he wrote. "The majority's ruling fails to provide any protection for Britain's fundamental constitutional right as a fit mother to make decisions concerning the upbringing of her own daughter. Worse, in my view, the majority here looks beyond a detailed and complete statutory scheme adopted by the Washington Legislature and creates by judicial decree a new method for determining parentage."

But the majority said the state Legislature has been "conspicuously silent when it comes to the rights of children like L.B., who are born into nontraditional families, including any interests they may have in maintaining their relationships with the members of the family unit in which they are raised.

"We adapt our common law today to fill the interstices that our current legislative enactment fails to cover in a manner consistent with our laws and stated legislative policy."

Carvin also sought "third party visitation," but the court refused, citing its recent ruling finding the state's grandparent visitation law as unconstitutional.