Appeal Filed in Same-Sex Parental Rights Case

By Beacon Staff

HELENA – A Missoula woman who lost a court battle with her former same-sex partner over parental rights filed an appeal Thursday with the Montana Supreme Court.

District Judge Ed McLean of Missoula on Monday ruled in favor of Michelle Kulstad of Turah, following what attorneys for both sides called Montana’s first same-sex parental rights trial.

The judge decided Kulstad is a legal parent to two children — a 9-year-old boy and a 5-year-old girl — adopted by her former partner, Barbara Maniaci. He awarded Kulstad joint custody and decision-making authority over the children’s education, health care and “spiritual upbringing.”

Maniaci’s attorneys say Maniaci is now married, and she and her husband are entitled to raise their children the way they see fit. They argue Kulstad has no legal or biological ties to the children, and say the judge ruled in her favor simply because “the two women lived together for a period of time.”

“Undermining the rights of fit parents harms families and children,” said Austin R. Nimocks, senior legal counsel for the Alliance Defense Fund, a national conservative legal agency. “Fit parents have the right and duty to raise their children, and the U.S. Supreme Court has repeatedly upheld that right.”

Nimocks said Thursday the case has “absolutely nothing to do” with Kulstad’s sexual orientation.

“If Miss Kulstad was a man, we would still be in the case and making the same arguments,” he said. “Are we going to start granting ex-boyfriends and ex-girlfriends parental rights just because they lived under same roof? If so, how far do we go? Granting acquaintances and roommates parental rights over the objections of fit parents is a very dangerous precedent.”

But Missoula attorney Susan Ridgeway, representing Kulstad, said her client is much more than an acquaintance in this case.

“She’s the second parent of these children; she’s not the fifth boyfriend of the parent,” Ridgeway said.

Ridgeway said Montana law has “very, very strict” requirements for awarding someone a parental interest, and Kulstad has met those requirements.

“She made a commitment to be a parent, and she’s proven that she’s had a parent-child relationship with the children,” Ridgeway said.

In addition, Maniaci voluntarily allowed Kulstad to develop a relationship with the children, and it’s in their best interest for that relationship to continue, Ridgeway said.

During the two-day bench trial in May, Kulstad testified that she and Maniaci were in a committed relationship for 10 years. The children were each 1-year-olds when they went to live with the couple in their Turah home.

Kulstad testified that she supported the children financially and emotionally, and provided for their physical, psychological and developmental needs on a day-to-day basis.

Maniaci and Kulstad’s relationship ended in 2006, and Maniaci moved out and took the children with her.

In his ruling this week, McLean also found that Kulstad should be compensated for money she put into fixing up Maniaci’s home and other expenses; he and ordered Maniaci to pay restitution valued at more than $100,000. Nimocks said he is asking that enforcement of the restitution order be postponed pending the outcome of Maniaci’s appeal.