Who says they're your kids? Not in Montana

The Montana Supreme Court just made it a whole lot harder to be a parent, and a whole lot easier to become one.

Let's review the travesty of Maniaci v. Kulstad, decided on a 6-1 vote in an opinion released on Oct. 6 (hereinafter known as Black Tuesday).

The court affirmed a Missoula District Court ruling by Judge Ed McLean that Michelle Kulstad had earned the right to be known as a parent to two children because she had "shacked up" with the children's adoptive mother during the time when they were adopted.

That's a crude way of saying they were living together, but don't be misled by any grandiloquent claims of "civil rights" that attach to this case because Kulstad and Barbara Maniaci were engaged in a homosexual partnership prior to their 2006 breakup. There is nothing "civil" about what the Supreme Court did, and nothing "right" about it either.

All parties agreed that the matter of sexual preference was not an issue in the case, so it should not be seen as a victory for gay couples. In fact, it is as detrimental to gay parents as to anyone because what it establishes is that a rightful parent can lose custody or be forced to share custody with anyone who shares household obligations and acts in a kindly manner to children in the house. As Barbara Maniaci has learned, this can cruelly rip apart her family that began while she was in a gay relationship as easily as it can destroy the family of a heterosexual who lets her children form a relationship with her live-in lover.

Let's be plain. The "family" relationship between Kulstad and Maniaci was the kind of "family relationship" which is endemic in our society - one based on convenience and need - rather than one based on commitment and law. The two women were not married, legally could not be married, and could not adopt a child together without taking extraordinary measures that they did not choose to pursue. In the case of both adoptions, Barbara Maniaci adopted the children on her own, assumed responsibility for them, and asked Michelle Kulstad for help in fulfilling those responsibilities.

The same situation takes place in thousands of families in Montana, and millions of homes across the United States. Only a tiny percentage of those families involve a homosexual relationship, however. This is about parental rights; not gay rights. If you have a complaint about Montana's marriage laws or adoption laws, change them, but don't give homosexuals "special privileges" in custody cases because you think they are victims elsewhere.

Everyone involved in the adoption process knew that Maniaci was homosexual at the time (she has since married a man), but everyone also knew that there was no attempt to include Kulstad as a legal parent in either adoption.

Yes, Maniaci informed the social workers who did household visits prior to the adoption that Kulstad would be present in the house and would help to raise the children. It would be fraudulent for her to pretend otherwise considering the circumstances. By the same token, a single woman adopting children on her own (or involved in a custody battle) might well inform any official household visitors that her live-in boyfriend would be available to help pay the bills, take the kids to school and generally provide assistance.

Such information might be taken into account, but it obviously should not be given too much weight because live-in relationships, by their very nature, are fluid, non-committed, and subject to change without notice. And it certainly does not mean the mother wants her boyfriend to get joint custody of her children.

When the state awards custody of a child, a precious human life, to a mother or father, it obviously is expecting a lifetime relationship to develop between the child and his or her new parent. No such expectation attaches to the "live in" boyfriend or girlfriend.

At least, not until now.

The Montana Supreme Court has thrown all that on its head. Because by awarding parental rights to Michelle Kulstad, they have in essence changed the playing field for all parents. From now on, it is not the state alone which will have the power to determine custody, but each and every parent. Every time a parent invites another adult into the home as a partner (even should no sexual relationship at all exist) there is a chance that the "partner" may eventually sue for custody of the children in the house.

There is certainly nothing stopping them from doing so because the Montana Supreme Court has ruled inexplicably that parental rights may be abridged or abrogated even with no finding of unfitness on the nominal parent's part. This completely reverses the constitutional principle which had prevailed in all previous Montana case law that "a natural parent cannot be denied custody of his or her child absent termination of that person's parental rights for abuse or neglect."

The one bright spot in the ruling came not from the benighted majority, but from the lone dissenter, Justice Jim Rice, who spoke eloquently for parents and for sanity.

"The Court's decision," Rice noted, "will open a Pandora's Box of potential attacks upon the right of fit and capable parents to raise their own children."

After establishing that the Montana Supreme Court has previously held fast to the rule that "a finding of abuse, neglect or dependency is the jurisdictional prerequisite for any court-ordered transfer of custody from a natural parent to a third party," Rice demonstrates conclusively that his fellow justices in this ruling have ruled in favor of Kulstad "for the apparent purpose of diminishing the reach of the constitutional rights previously declared for parents."

And they did so, remarkably, without openly acknowledging what they were doing. Rice notes that the court mistakenly offers that the "pre-1999 statutes made termination of parental rights, based upon dependency, abuse or neglect, the only option available to the Court before it could award a non-parent a custodial interest."

That is the language used by Justice Brian Morris in his majority opinion, and it is clearly intended to convey the impression that statutory changes in 1999 had the effect of giving third parties new parental rights that did not exist previously.

However, this interpretation is inaccurate, flawed and deceptive, as Rice points out: "Contrary to the Court's analysis, it was not the pre-1999 statutes that limited the claims of third parties, but the Montana Constitution." Therefore statutory changes would still have to meet the constitutional test, and they plainly don't.

I invite everyone to read Rice's dissent for themselves [link provided at end of story] to see how many holes he pokes in the majority's "politically correct," but legally errant, opinion. In essence he notes that the court has failed its statutory responsibility to interpret the Constitution and has "permitted the Legislature to legislate Maniaci's constitutional rights out of existence."

In a broad rebuke of his colleagues, Rice declares, "the Court offers no rationale explaining how a third party's relationship with a child can overcome, constitutionally, a fit and capable parent's right to raise the child. It offers no analysis about how the Legislature's elimination of the fitness requirement can withstand strict scrutiny. The Court simply declares that the Legislature's will trumps this Court's declaration of constitutional rights."

Ultimately, Rice proves beyond a shadow of doubt that the majority opinion is simply a case of legislating from the bench. In order to prevail in her lawsuit, Kulstad needed to establish that Maniaci had "engaged in conduct that is contrary to the child-parent relationship." Such proof was not possible, because from all accounts Maniaci was a good mother. Therefore, in its ruling, the District Court changed the statutory requirement and said that Maniaci had engaged in conduct contrary to "an exclusive child-parent relationship," by allowing the children to have a relationship with Kulstad in the first place.

This is so bizarre as to be unfathomable, but for legal purposes all that matters is that such a finding is based on some notion of "social justice" and not on law. As Justice Rice notes, the very first section of the Montana Code Annotated instructs the judiciary how to interpret statutes contained therein:

"In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted."

Yet by adding the word "exclusive" to the statutory requirement, the District Court did just what it is forbidden to do. As Justice Rice says, "It inserted new language into the statute," and the Supreme Court simply "affirmed the error."

Unless this ruling is overturned on appeal to the Supreme Court of the United States, Montana parents will never again be sure that the state won't be able to take their children from them. After all, according to the statute (MCA 40-4-228), "It is not necessary for the court to find a natural parent unfit before awarding a parental interest to a third party..."

If the court wasn't smart enough to throw out that usurpation of a fundamental right guaranteed not just by the Constitution but by the natural order, then it must be time to throw out the court. Remember, in Montana, Supreme Court justices are elected. For the record, the justices who voted against parents in this case were Brian Morris, Mike McGrath, James Nelson, John Warner, W. William Leaphart, and Patricia Cotter.

(NOTE: Read the court's opinion and Justice Rice's dissent by clicking on "Cases Decided Within the Past 30 Days" at http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/SLL_FN_Home.htm)

n Frank Miele is managing editor of the Daily Inter Lake and writes a weekly column. E-mail responses may be sent to edit@dailyinterlake.com