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Same-sex parental rights extended
Thursday, January 03, 2002 By Tom Gibb, Post-Gazette Staff Writer
Correction/Clarification: (Published Jan. 3, 2002) An article yesterday concerning a state Supreme Court ruling covering parental rights for same-sex couples erroneously listed one of the justices joining in a dissenting opinion. Justice Thomas Saylor wrote the opinion, with Justice Ronald Castille joining in the dissent. Justice Ralph Cappy wrote a concurring opinion.
One side portrayed her simply as caretaker and baby sitter to her lesbian partner's child.
The other side said that she was much more -- pretty much a live-in, assistant mom at the Johnstown-area home the two women shared. She went through childbirth classes with her partner, was designated to be in the delivery room when the baby was born, and was designated in her partner's will as the child's guardian.
Now, 5 1/2 years after their relationship soured and the two women parted ways, the state Supreme Court has issued a precedent-setting ruling, giving the assistant mom, as it were, standing to seek partial custody.
The high court in a 5-2 decision Friday said parental rights can grow out of homosexual relationships. That extends the rights beyond more traditional relationships in which, say, an estranged grandparent or a former live-in husband can argue that they were de facto parents and deserve a shot at custody.
"It's an extremely important case in Pennsylvania," said Patricia Logue, a Chicago-based lawyer with a gay rights advocacy group that took up the woman's case. "There are a lot of people in Pennsylvania and nationally watching this."
"The question is what is the role a person played in raising a child, not respective of whether the person was gay or lesbian or a grandparent or anything else," said Stacey Sobel, executive director of the Philadelphia-based Center for Lesbian and Gay Civil Rights. "After this case, they won't have to wait five or six years to say, 'I have legal rights.' "
In setting that standard, the Supreme Court adhered to common law, which says a person who acts as a parent but legally isn't one has certain rights. With the decision, the court brushed aside the state Legislature, which never lumped same-sex relationships with marriages and biological ties as frameworks from which custody claims can spring.
With the Supreme Court telling her that she has standing to ask for custody -- probably visitation in this case -- Tracie Binaut will go back to a judge in Cambria County, seeking specific custody arrangements. She will pick up where she left off four years ago, when she was granted periodic visits before everything was frozen as the case was appealed.
The foundation for the dispute was laid nine years ago, court papers say, when Binaut and Lorrie Mangus were living together and decided that Mangus would have a child, using donor sperm.
"There was no intention that [Binaut] would be the co-parent," said Mangus' attorney, Nicholas Banda of Johnstown. "My client was approached to sign papers saying that they'd be co-parents, and my client said, 'I'm the parent, and if you want to help raise the child, you can help me.' "
But court filings for Binaut portray her as enmeshed in the child's life, from caring for her when she was sick to being named guardian if Mangus died.
Three years after the child was born, though, Mangus and Binaut broke up. A month later, Binaut was allowed to visit the child, then barred from seeing her again. And within weeks, the legal battle was under way.
"This is a kid who was raised by someone ... a second parent ... every day for three years. And then the partner says, 'Never come back again,' " said Logue, senior counsel with the Lambda Legal Defense and Education Fund. "What we tried to cure here was the arbitrary right of a parent to say, 'I never want to see you again, so you can never see the kid again.' "
"Their last contact was 1996. I'm not sure the child would remember her," Banda said. "There could be confusion as far as the child's bonding and love and affection."
In his majority opinion, Chief Justice Stephen A. Zappala Sr. noted a previous Superior Court decision referring to people outside the biological family who provide "care, nurture and affection, assuming in the child's eye a stature like that of a parent."
People like that can't be denied parental rights just "because the statutory scheme does not encompass former partners or paramours of biological parents," Zappala wrote.
But in a dissent on behalf of himself and Justice Ralph Cappy, Justice Thomas Saylor took issue with adhering to common law after the Legislature weighed in on a subject. Doing that, he wrote, "undermines the Legislature's prerogative to define the parameters of its own policy."
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