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Mommy Wars

A Salt Lake court tests the legality of same-sex parenting agreements.

By Eric S. Peterson
Posted // April 29,2009 -

Same-sex couple Gena Edvalson and Jana Dickson hoped they had all their parental-rights bases covered when they drafted co-parenting agreements in 2003. Like many couples, they likely planned to remain in a committed couple and raise children together. It didn´t work out the way they planned.

They no doubt followed the The Utah Supreme Court’s February 2007 ruling in the case of Jones v. Barlow which said that relationships between children and nonbiological “parents” carry no protections under Utah law. The challenge came from a custody dispute between an estranged lesbian couple, where the biological mother won full custody of the child the couple had previously raised together.

Many couples, like Edvalson and Dickson, drafted co-parenting agreements—documents entitling one another custodial rights as parents of their child, protected under contract law.

They were warned, however, that coparenting contracts had not been tested in the Utah courts. Six years later, their own document would be the landmark case making its way to the courts.

The couple split up in 2007 and now are fighting for custody of their 3-yearold son, which Dickson had given birth to through artificial insemination. As the biological mother, Dickson, now remarried and with a husband, legally has all rights to the child, with no challenge to her fitness as a parent. Edvalson, formerly one of two mothers in the household, is now a “legal stranger.” But what separates this case from Jones v. Barlow, is the untested co-parenting agreement. Now the courts will look to see if this document, with the support of Utah contract law, can grant same-sex couples a kind of legal protection they can find nowhere else in Utah.

According to Edvalson, the couple looked for legal protections in 2003, when both Edvalson and Dickson received artificial insemination and planned to get pregnant. While only Dickson became pregnant, the couple initially sought the parenting agreement to protect both of them. “I told [our lawyer] we want to do anything we can,” Edvalson says, “even things that are untested, to preserve both of our rights.”

Edvalson recognizes the unique status of the case, but she also recognizes it’s, in many ways, a familiar tale.

“It’s a long story about people who break up,” she says. “Lots of people try to prevent their ex-partner—whether they’re in a same-sex relationship or not—from having the kind of access that person wants to their children. It´s not different than that, really.”

The complaint for custody rights saw its initial hearing April 24, in Salt Lake City’s 3rd District Court. Like any custody battle, the formal legal atmosphere was charged with the tension of a divided family. The plaintiff and defendant hardly looked at each other, while Dickson’s new husband sat nervously in the second row, fidgeting and, at times, sternly shaking his head or nearly jumping out of his seat.

The counsel in the hearing had history of their own. Attorney for the defendant Dickson, Frank Mylar, an attorney associated with the Alliance Defense Fund, a conservative religious-liberties organization, had opposed counsel Lauren Barros in the heated Jones v. Barlow case that, in 2007, favored the rights of biological parents.

Mylar submitted to the court that Edvalson’s motion be dismissed, citing the lack of Edvalson’s legal standing as a parent.

“There was guardianship,” Mylar says. “The plaintiff and defendant were cohabitating. [But] on the other hand, the plaintiff is not related to the child by blood or marriage.”

Mylar argues that Utah case law only allows for the biological parent to be voided of his or her rights in situations where the parent is unfit.

“Unless and until there has been [abuse], the state mandates this court cannot enforce this contract,” Mylar says of Edvalson’s seeking custody through the parenting contract. Mylar also argued that the weight of Utah public policy stands behind the right of the biological parent.

“If this court enforces any part of this agreement, you will allow the court to circumvent the adoption process,” Mylar says.

In an interview, Barros reiterated arguments she made in the hearing as to why the defense’s public-policy argument falls short.

“We can’t just say there’s a general public policy that people who are lesbian or gay should not be allowed to raise children,” Barros says. “There is not a stated public policy that says individuals can’t contract for [parental] rights.”

Barros says contract law is an uncommon avenue of legal protection for families but is one of necessity for same-sex couples in Utah, for whom alternative protections like domestic partnership rights and in loco parentis, or de facto parenthood are not recognized in same-sex unions. “This state has wiped out most of those opportunities,” Barros says. “So what we’re left with at the moment is the ability—if they are a fit, legal, parent—to contract for custody of the child.”

Several witnesses testified at the April 24 hearing, since it would be difficult to secure their testimony later on. From London, Attorney Laura Gray—who created the co-parenting agreement—testified, confirming that both parties intended on becoming pregnant and sought legal protection. She also indicated drafting roughly 20 other agreements for different couples but that this was the first legal challenge.

Edvalson’s father, 87-year-old Joseph Edvalson, also testified because his age and limited mobility would make it harder for him to return to the court. Joseph had lived in the apartment attached to the home of Gena and Dickson up until their separation.

Joseph was simply asked of his observations of the dynamic between the child, Gena and Dickson.

“[The child] thought they were both mommies, and that’s how he treated them.”

The date for the next hearing on the motion to dismiss, as of press time, has not been set.

 
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