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Same sex adoptions and custody

Joint Legal Custody shared by Biological Mother and Same Sex Partner

Minnesotaís Court of Appeals has upheld a decision to grant joint legal custody to three parties, the biological father, the biological mother and her same sex partner. The case entitled In Re: LaCappelle v. Mitten; In Re the Custody of: L.M.K.O. has set off a firestorm of controversy regarding parental rights.

In 1990, Denise Mitten and her lesbian lover Valerie Ohanian sought and found a sperm donor for a child that Mitten conceived and the two women raised together as parents. The sperm donor, Mark LaChapelle, was also involved in a gay partnership. After the minor child was born Ohanian and Mitten executed an agreement that they would share legal and physical custody. They also executed an agreement with LaChapelle that he would have a significant relationship with the child. Ohanian adopted the child and continued to share custody with Mitten. The adoption papers listed the father only as "artificial insemination" without naming LaChapelle.

The relationships later became tangled. LaChapelle alleged that Mitten and Ohanian denied him access to the child. Asa result, LaChappelle brought an action and was ultimately able to invalidate the adoption on the basis that he was not disclosed as the childís father and sought paternity testing. In the interim Mitten was awarded temporary custody.

Subsequently, in 1996 the relationship between Mitten and her lover Ohanian deteriorated. Mitten received a job offer in Michigan and made plans to move. Ohanian responded by seeking custody of the minor child. The Court granted visitation rights to both Ohanian and LaChapelle and allowed Mitten to temporarily move to Michigan.

After a trial in February, 1999, the Court granted Mitten, Ohanian joint legal custody and awarded LaChappelle all rights of a legal custodian. Even more significantly, the court restricted the biological motherís ability to relocate to Michigan ruling that although Mitten was awarded physical custody that award was conditioned on her returning to Minnesota.

Mitten appealed.

The Court of Appeals ruled that the grant of joint legal custody was permissive contending that the court awarded legal custody only to Mitten and Ohanian and that LaChappelle, though he was given rights similar to legal custody was not awarded legal custody because he had waived that right at trial.

Even more significantly, the Appellate court ruled that the trial courtís custody award conditioned on the Mittenís return to Minnesota did not violate her constitutional rights. Custody determinations are based on the childís best interest. If the best interests are served by the child remaining in Minnesota, the Court may make such a ruling. That ruling does not recent the parent from relocating to Michigan. It simply prevents her from relocating with the child.

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