JURIST - Paper Chase: Canada court expands rights of gay non-biological parents

[JURIST] A judge for the Queen's Court Bench of Alberta [official website] has granted legal rights to a non-biological father of a child—the ex-partner of the biological father—over the biological father in a child custody case. While the judge stated that the biological father, identified as "H", would remain the legal parent [Calgary Sun report] of the unidentified eight-year-old girl, the non-biological father, identified as "R", will maintain physical guardianship over the girl. R has been acting as the primary caregiver of the girl since 2006. In order for R to obtain parental status, the judge stated that he will have to pursue a constitutional challenge over the limitations placed on rights of gay non-biological parents. The girl's biological mother, identified as "D", also maintains her parental status. In her decision, the judge stated that a clear gap exists in Alberta's Family Law Act [materials], which fails to legally define gay men as fathers.

The US court system is also being utilized to expand the scope of gay parental rights. Last week, the US Supreme Court [official website] declined to review [JURIST report] a case involving a same-sex couple who want both their names on the birth certificate of an adopted child. Though adopted in New York, the child was born in Louisiana, where the couple was refused their request. The couple appealed, and, in April, the US Court of Appeals for the Fifth Circuit [official website] ruled en banc against the parents [JURIST report], finding that "adoption is not a fundamental right," and that "Louisiana has a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children." In May 2010, the New York Court of Appeals [official website] issued two rulings [JURIST report] expanding the rights of non-biological gay and lesbian parents. In one case the court determined that a lesbian can assert parental rights over the biological child of her partner, reversing a lower court decision [JURIST report]. In the second case, the court ruled that a lesbian could seek child support from her former partner.