An ‘Equitable Parent’ Idea Applied To Relationship Of Woman, 2-Year -Old

From — St. Louis Post-Dispatch

May 9, 1996

By Martha Shirk ,Of the Post-Dispatch Staff

A lesbian who’s taken care of her former lovers’ 2 1/2-year-old child from birth is the child’s “equitable” parent” and should help raise him; a St. Louis judge has ruled.

St. Louis Family Court Judge Thomas J. Frawley on Tuesday gave the mother legal custody of the boy, but ordered her to consult with the other woman on all parenting decisions. He also ordered them to split the child’s time equally between them. The ‘child will change residences every Friday. Frawley said that separating the child from the woman who has raised him would harm him emotionally.

Family law experts said that Frawley’s ruling may open the way for other people, such as stepparents , or live-in companions, to use the “equitable parent” concept to seek continuing contact with a child, after their relationships with the child’s parent have ended.

“I think this is an important step in recognizing that a child can be harmed by the interruption of a relationship with an adult whom the child views as a parent,” said Susan Appleton, a family law expert at the Washington University School of Law. “A child’s affection and trust aren’t based on neat legal definitions of who counts as a parent.”

Although the “equitable parent” concept has figured in custody decisions elsewhere, and in inheritance cases in Missouri, this is apparently the first custody case in Missouri in which it has been cited to justify continuing contact between a child and an unrelated adult.

The case started last summer when a 35-year-old warehouse worker known in court records as A.L. sought legal and physical custody of the child.

A.L. said that her former lover, Y.R., an unemployed mother of four, gave her the child within days of his birth, in June 1993, and that he spent all but one night of his life with her until last June. She says she returned him to his mother after she was threatened with prosecution.

A.L. was seeking full legal and physical custody of the child. Leigh Joy Carson, the attorney Frawley appointed to represent the child, supported her position.

During a two-day trial last month, Y.R. denied that she had been A.L.’s lover or had promised A.L. that she could raise the child, although she admitted leaving him with A . L. for weeks at a time. She said that she gave the child A.L.’s surname only because A.L. was his godmother. Frawley said in his order that he believed A.L.’s version of events, not Y.R.’s.

The mother’s attorney, Allen Harris, argued that A.L.’s sexual orientation made her unfit to rear the boy. But Frawley said her sexual orientation was not an issue because of evidence that the child’s mother had also engaged in lesbian sexual activities. Frawley put limits on both women’s sexual activities: no overnight adult visitors in their homes while the child is present.

Frawley said the case was a reflection of changing social relationships and required a ” functional approach” rather than a “traditional, stricter formal approach” to defining family.

“Courts must seek to resolve custody and visitation disputes in a way which minimizes the detriment a child suffers when his emotional bonds do not conform to traditional family norms,” Frawley wrote in his order. “Courts must be ever cognizant of the child’s need for stability in his fife and continuity in his personal relationships and never underestimate his ability to manage multiple parenting relationships.”

Frawley took the concept of an “equitable parent” from court rulings in New York and Washington. An “equitable parent” is a person who “provides for the physical, emotional and social needs” and whose relationship with the child “began with the consent of the child’s legal parent,” those rulings have held.

The child’s mother declined to comment until she could be briefed on the ruling by her attorney. He, too, declined to comment.

A.L. said that she was disappointed in the ruling because it upset the child to change homes every week, as he’s been doing, under court order, since February. “He just cries and cries when he has to go to her,” A.L. said. “I wish she would just disappear and give me my baby back.”

A.L.’s attorney, Adrienne L. Schaffer, said she was “thankful that the court acknowledged the strong bond between my client and the child and made sure she has a significant role in raising of him.”

Carson, the child’s attorney, praised Frawley for “a courageous decision.” Even so, she plans to ask him to reconsider and give legal and primary physical custody to A.L. “Listening to her talk about the role she plays in his life is food for the soul,” Carson said. “The relationship she has with the child is truly extraordinary.”