In a unanimous opinion joined by the court's Republican-appointed justices, the Minnesota Supreme Court today upheld a trial court order that a woman should be allowed visitation with the two children she helped raise with her lesbian partner of 22 years.
The trial court's order was based on a Minnesota statute allowing third parties to petition for "reasonable" visitation if the person has lived with the children at least two years. Unlike "grandparent visitation" statutes in other states, the Minnesota law places no restriction on the legal or biological relationship of the third party to the children.
The facts of the case illustrate the realities of family life for hundreds of thousands of gay couples and their children in the country. From the court's description of the background facts:
[Marilyn] Johnson and [Nancy] SooHoo, who lived together and jointly owned a house in Minneapolis, ended a 22-year relationship in the fall of 2003. During the course of that relationship, Johnson adopted two children from China. When Johnson adopted the first child, both she and SooHoo traveled to China. When Johnson adopted the second child, SooHoo remained in Minneapolis and cared for the first child while Johnson went to China. SooHoo did not adopt either of the children, but the record indicates that Johnson and SooHoo co-parented the children, recognized themselves as a family unit with two mothers, and represented themselves to others as such. For example, SooHoo took maternity leave to care for both children upon their arrival in the United States. SooHoo also participated in the selection of child-care providers and schools for the children and shared in the daily parenting responsibilities, including dropping off and picking up the children from day care, helping with school projects and homework, preparing meals for the family, taking the children to doctors appointments (including authorizing the children's immunizations), coordinating extracurricular activities and play dates, providing the sole care while Johnson was away on business, and taking the children to California to visit SooHoo's extended family, all without apparent objection by Johnson. The record further reflects that the children referred to SooHoo as "mommy," and referred to SooHoo's parents as their grandparents. In the information provided to the children's schools, Johnson listed SooHoo as mother number two and listed the last name of one of the children as Johnson-SooHoo. SooHoo attended the children's parent‑teacher conferences with Johnson, during which both women signed off on the teacher's goal setting report as "Parent/Guardian."
There is nothing unusual about any of this. It is now quite common for gay couples to share all of the responsibilities of raising children and for the children themselves to know no parents except them.
The case also illustrates the unusual legal difficulties these families face. When the women broke up, Johnson allowed SooHoo to see her children for a total of only 48 hours over a period of almost six months. The women could not marry in Minnesota, which would have allowed a joint adoption of the children and thus presumed visitation for both of them. That would have spared the kids the near total separation from SooHoo they endured for six months.
For some reason not discussed in the opinion, SooHoo did not get a second-parent adoption, which allows a person to adopt his/her unmarried partner's biological or adopted child without terminating the partner's parental rights. Second-parent adoption is allowed in some states by statute and in some others by judicial decision. In gay couple households, it gives children the security of having two legal parents in case they separate, or in case the legal parent dies or becomes incapacitated. In Minnesota, some judges in Hennepin County (which includes Minneapolis) and other counties allow such adoptions; others around the state apparently don't allow it. It may be that the women in this case got the children before these adoptions were being permitted, or that they did not have the additional money for further adoption proceedings, or that they did not know it was available.
Barred by Johnson from seeing her children, SooHoo sued to get full custody of the children and, in the alternative, to set a visitation schedule under state law. The trial court denied her custody motion but granted her visitation comparable to what a non-custodial legal parent would get (weekly visits, alternate holidays, long summer visits).
One issue of importance here was presented to the Minnesota Supreme Court. Johnson claimed that the state third-party visitation statute was an unconstitutional infringement on her substantive due process right as a parent to control the upbringing of her children. (She also claimed that the trial court abused its discretion in awarding so much visitation to SooHoo. Based on the facts, the state supreme court held that the visitation order was not clearly erroneous.)
The court applied what it called strict scrutiny and upheld the constitutionality of the statute. First, it said that the state had a compelling interest "in promoting relationships among those in recognized family units (for example, the relationship between a child and someone in loco parentis to that child) in order to protect the general welfare of children." (citing a Minnesota case extending parental immunity to a stepfather)
No doubt some will highlight the idea that the state supreme court is implicitly saying that a gay couple and their children can be a "recognized family unit" under state law and that this is a precursor to judicially imposed same-sex marriage. That would be an exaggeration. The court was not mandating the recognition of rights of co-parents as a matter of state or federal constitutional law. It was applying a state statute designed to protect children who might otherwise be cut off from a long-standing parent, of either sex and of any legal or biological relation to the child. Nothing in the decision (or the state statute) turns on whether the "third party" is in a sexual or romantic relationship with the child's parent. To have held that a same-sex partner could not qualify as a third party under the statute, no matter how intensely and fully involved in the child's life and no matter how long that involvement lasted, would itself have been an act of judicial usurpation and of unbearable cruelty to the children.
Second, the court emphasized the narrowness of the state law: it "limits the class of individuals who may be granted third-party visitation to those who have a longstanding parent-child relationship with the child and prohibits the district court from granting visitation if the visitation is not in the child's best interest or interferes with the custodial parent's relationship . . . ." The court itself imposed a requirement — not found in the statute — that the third party "has the burden of proof by clear and convincing evidence."
There was nothing unusual or activist in this result. The court's reading and application of the state statute are fair, its constitutional analysis is restrained, its deference to the factual conclusions of the trial court is appropriate, and the policy result is reasonable.
Cases like this are examples of law catching up to the facts of life for millions of people in this country. If we're not going to bar gay individuals and couples from raising their own children — something I've not heard any serious and prominent opponent of gay marriage propose — the law is going to have to accommodate the needs and interests of these families in some way.
When a gay couple has been raising children together, we can't just take those children away from one of them and pretend that they've all been strangers who happened to live in the same house. I'm not saying that gay marriage is the only answer, though it's the one I'd prefer. It seems to me to require the least adjustment in ordinary legal processes and presumptions for adjudicating parental rights and duties.
Alternatively, the law can take account of real-world parental relationships by allowing second-parent adoptions. It can also recognize de facto parents by permitting visitation and by imposing child support and other obligations.
Indeed, the lack of marriage for gay couples is one of the factors pressing the law in the direction of recognizing these alternative ways of protecting parents' and children's interests. The alternatives have their own complications. But even aside from its correctness under Minnesota law, the court's decision is surely preferable as a matter of family policy and common sense to having the court close its eyes to the lived experience of these families.