Nebraska Ruling Clarifies Custody Rights for SS Couples

[azulai]

This is actually good news in a state that has a ban on same-sex marriage in their Constitution.
Nebraska high court clarifies same-sex custody rights

Friday, August 26, 2011

OMAHA, Neb. (AP) — The Nebraska Supreme Court issued a decision Friday that clarifies the custody rights of same-sex couples in the state.

The court ruled that a lesbian woman can pursue custody and visitation after her relationship ended with the child's biological mother because she had been acting as the boy's parent.

The ruling will send the dispute between Teri Latham and Susan Schwerdtfeger of Omaha back to a lower court for hearings about whether Latham should be granted visitation rights.

The two lived together as a couple for more than 15 years before having a son together in 2001. The two women chose a sperm donor together and shared the cost of the fertility treatments for Schwerdtfeger's pregnancy. Both sides agreed Latham acted as the boy's mother for the first several years of his life before the relationship ended in 2006.

"The relationship between Latham and Schwerdtfeger, however, is not the deciding factor," the court said in its ruling. "The record is clear that Schwerdtfeger consented to Latham's performance of parental duties. Schwerdtfeger encouraged Latham to assume the status of a parent."

Latham's attorney, Tyler Block, said this ruling will be important for same-sex couples as well as for other non-married couples where someone who is not the biological parent acts as a parent.

"They got it exactly right," Block said. "They applied Nebraska law and helped give clarification on how it applies in these particular situations."

Schwerdtfeger's attorney, Angela Tiritilli, said her client is disappointed with the ruling because it will likely mean several more years of court proceedings. But Tiritilli said the ruling should help clarify parental rights in the state.

"What we're seeing here is a good trend: the court is not simply dismissing same-sex parental rights," Tiritilli said.

Schwerdtfeger had argued that Latham hadn't done enough since the relationship ended to maintain her parental rights. Latham quit providing financial support for the boy and wasn't involved in making decisions on his behalf.

Plus, 10-year-old Parker Schwerdtfeger told a judge last year that he didn't want to continue to have a relationship with Latham.

The court said that it appears the main reason why Latham hasn't had much contact with the boy is because Schwerdtfeger restricted her access to the boy.

"The amount of visitation Latham has been afforded does not appear to reflect a lack of desire on her part to be an active part of P.S.' life," the court said.

But Latham will have to prove at trial that it is in the boy's best interest for her to have a relationship with him, the court said.

The National Center for Lesbian Rights wrote a brief supporting Latham's argument because the center believes courts should recognize the custody rights of same sex couples as long as they meet the legal standard to qualify for parental rights.

The Center for Lesbian Rights said it believes parent-child relationships are intended to be permanent and shouldn't be undone if a child's parents separate.

This case did not deal with the question of whether same-sex couples can marry or get divorced, which is prohibited under the state Constitution.