Q: Does sexual orientation of the parties affect the legal theories in this case?
A: No. Montana law views parental rights from the child’s perspective and what is in the best interests of the child. Children of gay parents have the right to be treated the same as children of straight parents, and an exception cannot be carved out for children of gay parents that would harm and essentially punish those children.
Q: Does the trial court’s decision mean a “baby-sitter” can become a “parent” of a child?
A: No. The bar is very high to establish a parent-child relationship. First, a person must show there is a “parent-child” relationship as defined in law, and then he or she must show that the adoptive or natural parent fostered or consented to that relationship, and finally he or she must show that recognizing and continuing the relationship is in the best interests of the children.
Q: How does this affect the constitutional right to parent that the law recognizes in the adoptive parent?
A: Both women have a constitutionally protected parent-child relationship with these children. Moreover, constitutional parental rights are not absolute and must give way when necessary to protect the child’s own rights. Here the court has found that the children would be harmed if their relationship with Michelle is severed.
Q: Does the constitutional amendment declaring that a marriage is between a man and a woman affect who is awarded custody?
A: No. At issue is the parental relationship Michelle has with the children, not Michelle’s relationship with Barbara.
