Fear and loathing is no way to decide the rights of children and their parents. In Utah, two woman raised a child together as lesbians. Then one of the woman found a man and decided that her former lover should not visit the child anymore, even though she knew the baby from birth and was her de facto mother.

The general rule governing custody and other matters relating to children is: what is in the best interests of the child? That legal standard requires the courts to take a hard look at the case and push aside the parents' emotions. If the proposed arrangement is not in the child's best interests, then the courts will not allow it.

Wouldn't it be in the child's interests to be visited by one of the women who raised her, even if she is not the biological mother? The "best interests of the child" standard operates in New York. Maybe not in Utah, where the court instead applied a legalistic analysis about the rights of the natural parent and the court's reluctance to "legislate from the bench" and extend parental rights to the biological mother's former lover who helped raise the child. The court ruling treated the losing parent as if she were nothing more than the biological mother's good friend. But she was more than a good friend, at least in the context of the child's life.

Gays and lesbians are more accepted in today's society than ever before. But the courts are not catching up. I have seen courts rule again and again that the constitutional guarantee of equal protection of the laws does not extend to same-sex marriages, even though there is no compelling reason to outlaw them. Fear and prejudice are not compelling reasons. "We never did this kind of thing before" is not compelling. If marriage is a fundamental constitutional right under the Constitution, same-sex unions cannot be restricted, at least in my view. But the courts have jumped through hoops in refusing to pull the trigger in this regard, embarassing themselves with pedestrian legal analysis in striking down these claims.

Maybe the squeamish cannot handle the idea of gay men and lesbians getting married, because they can't deal with what goes on inside the bedroom. But to extend that prejudice to the visitation battles between former gay and lesbian lovers is even more inexplicable. It brings prejudice to a whole new level.

Here's the article from a Utah newspaper:

Utah top court rules against granting same-sex parental rights

By Geoffrey Fattah
Deseret Morning News
February 17, 2007

The Utah Supreme Court has ruled that common law alone cannot grant a domestic partner who is not the biological parent of a child the right to visit that child, even if that partner acted as a parent while in the relationship.

The decision is being hailed by conservative groups and supporters of strong parental rights, while others have described it as a "deep and severe loss" for nontraditional families.

Friday's ruling comes more than 18 months after oral arguments were heard in this one-of-a-kind case for Utah. The former same-sex partner of a biological mother has fought for the right to visit the little girl the couple had planned to rear together. The women separated when the girl was 2 years old.

A district court judge initially ruled that Keri Lynne Jones had a right to visitation through a common-law concept known as "in loco parentis" which is Latin for "in the place of a parent." The lower court found it was in the girl's best interest to continue to have contact with Jones, despite the protest of mother and former partner, Cheryl Pike Barlow.

Barlow, a born-again evangelical Christian who claims she is no longer a lesbian, argued that as a fit biological parent, she had a right to decide those to whom her child is exposed. Barlow argued to the Utah Supreme Court that she did not want her daughter exposed to the same-sex lifestyle.

In November 2000, Barlow and Jones decided to enter into a civil union in Vermont and to raise children together. Barlow conceived a child through artificial insemination and, in October 2001, gave birth to a baby girl. The birth certificate listed the child's surname as "Jones Barlow" and, for the first two years of the girl's life, both women cared for her. In May 2002, both women obtained a court order designating both of them as co-guardians of the child.

When their relationship ended in October 2003, however, Barlow petitioned the court again to have Jones removed as co-guardian, which the court granted.

Jones then brought suit against Barlow, seeking court-ordered visitation of the child. A district judge ruled that because the couple had planned to raise the child together and Jones had been a parental figure in the girl's life, she had standing to seek visitation and the court ordered such.

. . .

In a lengthy dissenting opinion, Chief Justice Christine Durham disagreed with her colleagues and noted that for all intents and purposes, Jones should be considered a family member, even though Utah law lacks a specific definition for her. Durham compared Utah's law with that of Vermont, where the couple obtained a civil union, which recognizes Jones as "an immediate family member."

Durham points out that the Utah Legislature has yet to address such relationships, and that only leads to harming children caught in the middle without the benefit of a clear law.

"A child's rights and best interests do not change depending on whether his or her parental figures are recognized as parents under the law or whether they are simply parents in fact," Durham wrote.