A Judge Ruled A Lesbian Parent Isn't The "Real" Parent Of Her Child

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By Virginia Chamlee

A Mississippi Supreme Court case is raising legal questions about the custody of children born into same-sex families. It would be an otherwise straightforward custody case: A couple gets married, has a baby, divorces, and then goes to court to determine custody arrangements. In this case, however, the two parties are both women — only one of whom is the child's biological mother. The judge ruled that only one of the women in the Strickland v. Day court case is the child's "real" parent, raising concerns about future legal struggles for same-sex parents.

Christina "Chris" Strickland and Kimberly Day had a child whom Day conceived through the use of a sperm donor. The child was given Strickland's last name, and they raised the baby as equal parents. However, the couple later split up, and Day later remarried a man. Strickland says after the remarriage she was prohibited from seeing her son. So, she took Day to court to seek legal custody.

In an October 2016 ruling, Rankin County Chancery Court Judge John Grant ruled Strickland and Day's child is "a child born during the marriage, not of the marriage." Because Day conceived the child through an anonymous sperm donor and Strickland is not biologically related to the child, he declared that both parties are not considered parents under Mississippi law.

The child's sperm donor, however, is, ruled the judge:

The Court questions: is the natural father not Zayden's father, even though he is an absent one? The Court is of the opinion the natural father is Zayden's father.

Grant made it clear the child's father has paternal rights, and then awarded sole custody to Kimberly Day.

Strickland was awarded no custody, but was allowed visitation rights (due to the "bond ... created between" her and the child). She also continues to pay child support for the child, who shares her last name.

The ruling was appealed and has now made its way to the Mississippi Supreme Court, which heard final arguments late last month. The outcome remains unknown, for now. But, as a new piece in Slate notes, the case is problematic for a number of reasons — largely because it raises questions about the legal security of same-sex or other nontraditional families.

John Culhane, a professor at Delaware Law School and co-director of the Family Health Law & Policy Institute, wrote in Slate that the Mississippi justices will "probably" overrule the lower court's decision, allowing Strickland to enjoy custody. He notes, however, that two of the state's justices have questioned the legitimacy of gay marriage even in the wake of the historic Obergefell v. Hodges case in 2015, which requires states to license and recognize same-sex marriage.

The case raises other questions, too. If justices side with Judge Grant, ruling that the sperm donor has parental rights, those rights would have to be legally terminated in order for Strickland to have any parental rights of her own. That ruling could be a slippery slope, one that could affect even opposite-sex couples who use sperm donors.

Lawyers for Day argued that the case was a "middle situation," where there is a marital unit but no "biological connection." As she agreed to allow Day to carry the baby, her lawyer argued, Strickland "knew from the beginning that she was not the parent of the child."

In her arguments to the state's supreme court, Strickland's attorney said her client attempted to have the hospital include her as a parent on the child's birth certificate. The hospital refused, however, based on Mississippi law.

"Christina should have been recognized on the birth certificate at the time," attorney Beth Littrell argued. "That was an unconstitutional law that prevented that from happening and shouldn't be used to justify claiming that she's not a parent now."