Wednesday, July 10, 2002

A story released today by the GayCity News reports that a June 27 ruling by the Arizona Court of Appeals held that awarding joint custody to a lesbian couple was a legal impossibility under Arizona statutes.

Jayme Thomas and Lisa June Nielson who were living together in a committed lesbian relationship when Thomas' sister gave birth to a daughter she could not raise. Thomas adopted the newborn girl, who has been raised jointly by Thomas and Nielson since her birth. Unfortunately, the women's relationship deteriorated and when the child was one year old, they separated, but agreed that they would have joint custody of the child, and actually obtained a court order to that effect.

But Thomas' own life went spinning out of control. In late 1999, she was hospitalized for "mental health and drug abuse issues -- for the seventh time since 1997." Nielson filed a petition with the Maricopa

County Superior Court for temporary and ultimately permanent custody of the child. Thomas opposed the petition, but Judge Pendleton Gaines awarded Nielson temporary custody, and authorized that the child visit with Thomas under supervision.

In late 2000, Gaines directed Thomas and Nielson to resume their previous joint custody arrangement, but designated Nielson to be "the final decision maker on medical, educational, and religious issues in the event of a dispute," and also awarded Nielson her legal fees for the court proceedings. Thomas appealed.

Judge E.G. Noyes Jr. found that joint custody between a legal parent and a non-legal parent would be an impossibility in such a situation, since the non-legal parent's custody claim depends on showing that the legal parent should not have custody. Unfortunately, the archaic Arizona statute was drafted without regard to the possibility of same-sex partners, or even opposite-sex domestic partners raising children together.

"Either it is in the child's best interest for a legal parent to have custody or it is not," wrote Noyes. "The court cannot reasonably find that it is in the child's best interest for a legal parent to have custody and that it is also in the child's best interest for a non-legal parent to have custody. If the court finds that it is in the child's best interest to award custody to a non-legal parent, the court abuses its discretion in also awarding custody to a legal parent, for the court has necessarily found 'by clear and convincing

evidence that awarding custody to a legal parent is not in the child's best interests.'"

"Interpreting a statute is often easier than applying it," Noyes conceded, commenting that "the trial court made a great effort to decide this case in accordance with the best interests of the child."

The court observed that when the case goes back to the Superior Court for a new custody decision, it would be possible to give custody to Thomas and order visitation rights for Nielson, which is an approach

that some courts in other states have taken to help preserve parental ties between same-sex co-parents and the children they were raising before breaking up with their partners.