Pending court ruling could settle custody disputes for same-sex parents

A Colorado appeals court case on Oct. 23 could set a new precedent resolving child custody disputes for same-sex parents who separate before they both have the same legal rights over a child.

The Colorado Court of Appeals will decide for the first time how the Uniform Parentage Act, or UPA, could be applied to some gay and lesbian parents contesting child custody.

The act works in part to establish parental rights and obligations through adjudication, outlining that the “parent and child relationship extends equally to every child and every parent, regardless of the marital status of the parent” — in other words, supporting parental rights and obligations for non-biological parents raising a child she or he has not formally adopted.

In 2007, Lisa Limberis and her partner at the time, Sabrina Havens, made the mutual decision to raise a child together through artificial insemination. Havens carried the child and a daughter was born in 2008, but at the time the hospital would not allow Limberis to add her name as a second parent on the birth certificate, Limberis said.

Now that the women are separated, Limberis — like many other LGBT parents — faces a complex legal process for gaining parental rights over the daughter who bears her last name.

“There has never been any court of appeals opinion on the use of the (Uniform Parentage Act) in this way in Colorado,” said Limberis’ attorney Kimberly Willoughby.

Limberis and Havens were co-parents for three years. “She named me as momma and Sabrina as mommy,” Limberis said. “Becoming a parent was life changing. You just don’t know how it really is until you experience it. I can’t imagine life without her.”

After the birth, the relationship between Limberis and Havens became strained and eventually fell apart. But they worked together to raise the child as co-parents — sometimes living together as roommates, and sometimes living apart.

“Even thought we weren’t together,” said Limberis, “Sabrina consented to file the second-parent adoption paperwork, saying that she’s allowing this to happen and there’s no other parent because it was through insemination.”

The Logan County District Court, however, ruled in October of 2010 that the adoption was not in the best interest of the child and unconstitutional.

The ruling said, “because H.B. 07-1330 (Colorado’s second-parent adoption law) purports to offer to same-sex couples the benefits of marriage, as related to the law of adoption, in conflict with the Amendment (Amendment 43), which declares that the exclusive means by which recognition of marriage may occur in Colorado is the establishment of such a relationship by heterosexual couples.”

Limberis could have filed for an appeal, but declined. “Sabrina told me I don’t need a piece of paper to be a mother,” she said.

Limberis and Havens continued to co-parent the child as Limberis filed for an Allocation of Parental Rights, which would have granted parenting time and decision-making responsibilities.

But in November 2011, Havens cut off contact between Limberis and the child. Having no legal standing as a parent, Limberis filed a maternity action claim that would declare Limberis the parent of the child.

It was at this time Havens revealed to the court, and to Limberis, that the pregnancy was not from artificial insemination, according to court documents. The biological father, however, was never involved in raising the child and relinquished his parental rights, leaving Havens as the sole parent under the law.

The parental rights allocation request and the maternity action were both denied by the Logan County District Court in January 2013.

“The court said that Lisa didn’t have standing or capacity under the maternity statute, and that’s what I’m appealing,” Willoughby said.

Willoughby explained the UPA can be used through a paternity action to add a biological father as the parent, regardless if the parents were married when the child was born.

The UPA has also been used in court through maternity action to add a second mother to a birth certificate, regardless of marital status.

“There would be two partners and they would have a baby from assisted reproductive technology,” Willoughby said, “and we would say to the court that we want an order before the baby is born that both of those mothers are going to go on the birth certificate and here’s why.”

The question the Colorado Court of Appeals must answer with Limberis’ case is whether the maternity action should still apply as interpreted by the UPA in previous cases if there has been a break up and one of the parents does not agree to add the other as the parent.

“In California and other states they say yes, you can do that,” Willoughby said. “They meet the statutory requirements, and there’s nothing in the statute that says you can’t do that.

“What I’m trying to do is cause a court of appeals opinion that makes it clear in Colorado that same-sex parents who bring a child into the world — but for whatever reason don’t file for second-parent adoption, don’t enter into a civil union, or don’t get married in a different state — those parents don’t get frozen out if there is a breakup, and those kids get the benefit of the two parents who brought them into the world.”

If successful, Limberis could be granted full parental rights alongside Havens.

Willoughby and Limberis plan to take the case to the Colorado Supreme Court if the appeal is denied.

Willoughby advises same-sex couples planning to raise a family to marry in a state that recognizes same-sex marriage so that their relationship is recognized in Colorado as a civil union. The Uniform Parentage Act automatically declares both parties in a civil union to be parents.

“At the end of the day, if people have a child together, there needs to be a court order that says that the non-biological parent is a legal parent,” said Willoughby. “Without it, that child and that non-biological parent are always disadvantaged.”