HELENA – The Montana Supreme Court has upheld a woman’s custody
rights to the two children her same-sex partner adopted during
The Supreme Court on Tuesday backed District Judge Ed McLean’s
ruling last year that granted Michelle Kulstad joint custody of the
two children — a 9-year-old boy and a 6-year-old girl.
The children were adopted by Kulstad’s former partner, Barbara
Maniaci, in 2001 and 2004. State law does not allow both members of
a same-sex partnership to adopt.
After the relationship ended, Kulstad filed in January 2007 to
receive parenting rights. Maniaci, who is now married to a man,
filed a motion to dismiss Kulstad’s petition.
“Maniaci cannot rewrite the history of the fact that she and
Kulstad lived together for more than 10 years and jointly raised
the minor children in the same household,” Justice Brian Morris
wrote in the court’s 6-1 opinion.
The District Court, after a May 2008 hearing, found that both
Kulstad and Maniaci were capable of being fit parents. The court
also found that both children had significant attachment and
emotional issues and removing Kulstad from their lives would affect
their future ability to have stable, healthy relationships.
“The District Court found that continuing Kulstad’s relationship
with the minor children would be in the children’s best interests
and substantial evidence in the record supports the District
Court’s finding,” Morris wrote.
Missoula attorney Susan Ridgeway, who represented Kulstad said:
“This decision is now going to allow children to continue
relationships with people who have functioned as parents, but who
haven’t been legally recognized as a biological or adoptive
There was a shared custody arrangement in place while the case was
being appealed, Ridgeway said. All the parties live in the Missoula
“Three years of litigation and uncertainty aren’t good for anybody
and especially not for young children,” Ridgeway said Tuesday. “We
hope this decision will help determine a custody arrangement that’s
in the best interest of the children.”
“The love a parent and child share is not limited by marital status
or sexual orientation and the Montana Supreme Court was right to
determine that state law protects that bond,” said Betsy Griffing,
legal director for the American Civil Liberties Union of
The Supreme Court also upheld the District Court’s ruling that
awarded nearly $102,000 and a vehicle to Kulstad from the joint
assets held by Kulstad and Maniaci.
Justice James Nelson concurred with the decision, but added:
“Maniaci and her defense team attempt to avoid the one issue that
makes this case uniquely important — the elephant in the room:
whether homosexuals in an intimate domestic relationship each have
the right to parent the children they mutually agree that one party
will adopt (or, presumably, conceive.) The District Court and this
Court have properly answered that question in the
“Sadly, however, this case represents yet another instance in which
fellow Montanans, who happen to be lesbian or gay, are forced to
battle for their fundamental rights to love who they want, to form
intimate associations, to form family relationships, and to have
and raise children — all elemental, natural rights that are
accorded, presumptively and without thought or hesitation, to
Missoula lawyer Linda Osorio St. Peter represents Maniaci
“It is a blow to parental rights,” St. Peter said Tuesday of the
ruling. “The oldest fundamental liberty interest recognized by the
U.S. Supreme Court is the parental right to the care and custody
and control of your own child.”
St. Peter said the Montana Supreme Court has repeatedly stated that
a parent’s interest must be terminated before the state can invade
a natural parent’s constitutional rights.
“This decision is a significant erosion into those constitutionally
protected rights of a parent to raise his or her own child,” St.
Justice Jim Rice, in his dissent, said the court’s decision “will
open a Pandora’s Box of potential attacks upon the right of fit and
capable parents to raise their own children. I dissent from this
weaning of parental constitutional rights.”