Utah case exemplifies judicial contempt for biological parents
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By Alan Sears
Guest commentary
Until the Utah Supreme Court stepped forward on Feb. 16 with its merciful breath of sanity, the best Cheryl Barlow had to hope for was a kind of "Sophie's Choice." According to incredible rulings of the state's lower courts, she could either let her 5-year-old daughter stay overnight alone with a woman who causes the child severe emotional distress and exposes her to attitudes and behavior that violate Barlow's core faith beliefs -- or go to jail.
That any caring mother should be placed in such a dilemma tells us just how serious things have become for conscientious moms and dads in a judicial system often more preoccupied with political correctness than parental rights.
Barlow was five months pregnant (by artificial insemination) with her daughter when she and her then-girlfriend, Keri Jones, obtained a civil union in Vermont. Both women were residents of Utah, which doesn't recognize civil unions, and the state offered Jones no legal right to parental status of any kind with regard to Barlow's child.
Less than two years later, Barlow learned that her partner was engaged in an affair with another woman, and elected to dissolve their relationship. Soon afterward, she became a Christian, renounced her former lesbian behavior, and moved her child out of the lesbian environment and eventually to another state.
Jones, however, suddenly showed an aggressive new interest in cultivating a parenting relationship with Barlow's child. She sued, and -- in an unprecedented act of judicial activism and disregard for both Utah and U.S. Supreme Court decisions -- a district court judge awarded her parental standing and visitation rights roughly equal to those a biological father would receive.
"The child's best interest is not served by enforced visitation with a woman who, according to the U.S. Constitution, state law and state public policy, has no legal claim for parental standing," says Frank Mylar, an Alliance Defense Fund-allied attorney who is representing Barlow. "It's unconscionable to take parental rights away from a loving mom to appease the demands of a legal stranger."
The "unconscionable" came pretty easily to the lower-court judges, who assigned a commissioner and a guardian ad litem to represent the child's interests and evaluate all information relative to the custody situation. Bad enough to trample the constitutional presumption that a fit parent should decide what is best for her child; even worse, both the guardian and commissioner brought a heavy personal bias to their responsibilities. They chose to ignore not only Barlow's wishes for her own daughter, but the findings of a child psychologist (who reported that interacting with Jones caused serious emotional upheaval for the child).
Why? Because, the commissioner explained, the psychologist, like Barlow, is a professed Christian -- and so incapable of unbiased assessment of anyone who practices homosexual behavior.
That the commissioner himself might be incapable of unbiased assessment of Christians is not a possibility deemed worthy of consideration.
When Jones pressed for overnight visits with the girl (now living with her mother in Texas), the court ordered Barlow not only to comply, but to cover Jones' travel fare. Barlow refused, based on her daughter's strong reaction to these visits -- so the court threatened her with everything from a $1,000 fine to up to 30 days in jail.
Happily, now the Utah Supreme Court has rediscovered common sense, and Barlow and her daughter may soon be able to get on with their lives, free of Jones' aggressions.
Still, this is far from an isolated case. Courts across the country are grappling with similar cases, all of which raise the fundamental issue of what it means to be a parent -- or a family. If the issue is no longer purely biological, and doesn't involve traditional adoption, what qualifies a person for legal authority in the life of a child?
Is it enough to simply want to be a parent to this particular youngster? To have lived, even for a little while, in the same house as the child?
Should desire and proximity really trump the biological claims of a mature, loving parent?
Sadly, more and more judges are saying "yes" to those questions, cutting our definitions of parenthood loose from the traditional moorings that have successfully guided societies for thousands of years. In their zeal to embrace an agenda that endorses homosexual behavior, these judges are legally mugging moms and dads all over the nation -- supplanting the natural authority of parents to determine their children's environment and influences with the crude power of the state to enforce its own bigotries.
So far, the U.S. Supreme Court is passing up every opportunity to address these so-called "psychological parenting" cases.
Unfortunately, while they wait, a wave of new cases is building, the tide of our culture is turning -- and legal chaos is engulfing the American family.
Sears, a former federal prosecutor in the Reagan administration, is president and CEO of the Alliance Defense Fund (www.telladf.org). He is co-author with Craig Osten of the new book "The ACLU vs. America: Exposing the Agenda to Redefine Moral Values" (www.acluvsamerica.com).
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