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Custody Rights for Non-Biological Parents


In recent weeks, Total Divorce has reported on divorce cases and custody battles involving same-sex couples - cases that deal with emerging questions of differences in marriage laws between the states and how a changing definition of "family" will affect issues of child custody and child support.

The latest child custody decision of this type involves a lesbian couple and their five-year-old daughter. Janet and Lisa Miller-Jenkins, residents of Virginia, went to Vermont to obtain a civil union in 2000, according to EdgeBoston.com. Two years later, Lisa reportedly had a daughter by artificial insemination and the family moved to Vermont.

Then, in 2003, sources indicate that Lisa renounced her homosexuality and moved back to Virginia with her daughter. After the move, Lisa evidently attempted to block Janet's custody of their daughter.

Lisa's divorce lawyer's argument apparently went like this: because Lisa lived in Virginia, and Virginia didn't recognize the civil union the two women had gotten in Vermont, any custody decisions made by the Vermont court based on that union didn't hold up in Virginia.

Janet's divorce lawyer, though, evidently had a different view, claiming that the case was a simple matter of child custody and that state marriage laws shouldn't come into play. Boston.com reports that, in 2006, Vermont's High Court granted full custody of the daughter to Lisa and regular visitation rights to Janet.

Recently, though, Lisa and her lawyer reportedly contested that decision and decided to re-appeal in front of a panel of three Vermont Justices. But sources indicate that the panel upheld the earlier decision to give Janet visitation rights.

Despite efforts from Lisa and her attorney, Virginia appeals courts have reached the same conclusion and the U.S. Supreme Court has reportedly refused to hear the case. But the issue of custody for a non-biological parent isn't restricted to same-sex couples.

According to the Salt Lake Tribune, a Utah man has been granted joint legal custody of a child he did not father. The man, whose wife reportedly conceived the child during an extramarital affair, was granted only partial physical custody in the original circuit court ruling.

The child's mother married the child's biological father after her divorce from her first husband, according to sources. During divorce proceedings, which apparently began when the child was 16 months old, a circuit court judge ruled that the biological father was the natural and legal father of the child.

But an appellate court overturned that ruling, and the state Supreme Court reinforced that decision. Evidently, because the first husband accepted parental responsibility of the child even though he knew it was not biologically his, he can be considered a legal guardian of that child.

As the structure of the American family changes, courts across the country are meeting the challenges of applying divorce and custody laws to the new familiar units that are emerging.

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