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N.H. high court rules birth mother’s ex-partner has parental rights

The state Supreme Court ruled yesterday that the ex-partner of a 12-year-old girl’s mother can fight for legal parentage, a decision that could affect other gay, lesbian and nonmarried couples.

The court ruled 5-0 that an existing state law, which provides parental protections to men who care for and consider a child their own, applies to women as well.

“It’s an enormously important recognition that families come in all shapes and sizes,” said Janson Wu, a senior staff attorney with Gay and Lesbian Advocates and Defenders, which represented the ex-partner, Susan.

The case emerged last year when the mother, Melissa, severed ties between Susan and her daughter, Madelyn B. (The court omits surnames in custody cases.)

The couple met and had the child using a sperm donor before the state adopted civil unions and later legalized gay marriage. They split when the child was 6 but continued to share parenting duties until last year, when Melissa moved to terminate Susan’s guardianship and began proceedings for her new husband to adopt Madelyn.

Susan protested to Derry’s family division court, but a judge there said she had no claims because she “is not (a) parent.”

“Susan never even got in the court doors,” Wu said. “Her petition was denied outright without a hearing. What the Supreme Court said is she had a right to make a claim under the statute, because she is a parent.”

The state Supreme Court has sent the case back to Derry for a future hearing.

Justice Gary Hicks wrote for the court that Susan’s claims, “taken as true, indicate that Melissa also regarded Susan as Madelyn’s parent as evidenced by, among other things, giving Susan a greeting card commemorating the ‘Birth of Our Baby,’ and including her as ‘Momma,’ and her parents as Madelyn’s grandparents, on Madelyn’s family tree.”

Melissa’s attorney, Joshua Gordon, said she would likely be disappointed.

Gordon said Melissa cut off ties after the child told her she didn’t want to see Susan anymore.

He also said the decision would probably not have as broad of implications as it might seem. State lawmakers recently passed legislation that would also render the law in question, RSA 168-B:3, gender neutral. Gov. Maggie Hassan is expected to sign the bill into law.

Still, Catherine Tucker, a Concord attorney who specializes in reproductive law and LGBT issues, said the decision will affect children who were born to same-sex couples before the state legalized gay marriage in 2010, because it can be applied retroactively.

Tucker said similar custody decisions are “incredibly common” between lesbian couples, as at least one partner has no biological ties to a child. She said nonbiological parents should not consider the court’s decision as an all-out protection, in part because their rights are not recognized in other states. Adoption is the only true measure of security, she said.

(Jeremy Blackman can be reached at 369-3319, or on Twitter @JBlackmanCM.)

Correction: an earlier version misstated the legal claim Susan can now make in family court. She can argue for legal parentage, not legal guardianship. She can potentially argue for guardianship, but only if and when the court determines she is a legal parent.

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