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BIOLOGY TRUMPS ‘OH, BEHAVE’ IN BRITISH CUSTODY SUIT

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Finding that biological ties are the most important factor in deciding child custody questions, a unanimous five-judge panel of Britain’s House of Lords Law Committee, the country’s highest appeals court, ruled on July 26 that children born to a lesbian couple should live with their birth mother, even though she had defied a court order and relocated the family without giving notice to her former partner, who had visitation rights.

The parties were referred to in the opinions by their initials.

CG and CW lived together as a couple from 1995 until 2002 and were jointly raising CW’s biological son, conceived during a prior relationship using donor insemination. Deciding to have children together, CG, by far the younger of the two, bore two daughters through donor insemination.

CW found a new girlfriend, broke up with CG, and moved out with her son in 2002. CG continued to live in their former family home with their daughters. CW had visitation by agreement, alternate weekends and holidays. Then CG also found a new partner, completed training for a new career, and made plans to move with her partner and daughters to a different city.

CW filed the lawsuit, seeking to have the daughters live with her and her partner, with whom they enjoyed a good relationship, and obtained a court order against the move pending resolution. Defying the order, CG and her partner secretly moved away with the daughters. CW had to use a tracing service to locate them, and won an order from the Court of Appeal giving her residential custody, which CG appealed to the House of Lords.

The Law Lords reversed. U.K. law, unlike that in the U.S., does not require that adults who are “psychologi­cal parents” to a child demonstrate their legal standing in a lawsuit—the best interest of the child is deemed paramount. However, the question of a child’s relationship to each of the contesting parties establishes a strong presumption in favor of custody for the biological parent, the panel found. It would take “compelling factors,” to quote one past ruling, to “override the prima facie right of this child to an upbringing by its surviving natural parent.”

Despite CG’s bad faith in removing the daughters secretly and in defiance of the court order, the panel noted that once CW reestablished contact with the girls, her ex-partner had not stood in the way of their relationship. CG was granted only alternate weekend and holiday visitation rights.

The opinion, it should be noted, spoke respectfully of the lesbian family unit, acknowledging the important roles of CW and her son in the lives of her daughters, and noted the importance of maintaining and nurturing those ties.

—Arthur S. Leonard

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Updated 5:17 pm, July 20, 2018
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