Lesbian custody tragedy

Both women cared for the child, but Kentucky law only allowed one woman to adopt her. The one who couldn't sign the document lost custody.

Published June 19, 2006 11:39PM (EDT)

Nine years ago, a lesbian couple decided they wanted a child. Unable to conceive one through artificial insemination, they decided to adopt. Since Kentucky law forbade a gay couple to formally adopt the child, Brenda Fawbush decided to let her partner sign the paperwork. Although both women cared for their daughter until the couple split three years ago, the Kentucky Supreme Court ruled last week that Fawbush had no legal custody of her child.

Fawbush had sued for custody and visitation rights when her former partner didn't let her see the girl following the bitter separation. But the judges unanimously agreed that Fawbush was not the girl's "de facto custodian" because she was not the primary caregiver, despite "participating substantially in the support and rearing of a child for a significant period of time." A lower court had ruled that she couldn't apply for such rights because although she was the primary breadwinner, she was not the primary caregiver. Under state law, she had to be both.

Fawbush argued that she had performed a "sufficiently parent-like role in the life of the child." As a result, her lawyer, Bryan Gatewood, told the court the child would be "permanently severed from one of the only two parents she has ever known."

While the courts play with terminology, a woman who nobly supported her child financially and emotionally hasn't seen her in three years. And a child has lost a woman who loved her.

In other news, the Arkansas Supreme Court is reviewing a case on why the state banned gays from being foster parents.

"What are you trying to protect against?" Justice Donald Corbin asked a lawyer for the state Department of Health and Human Services. He added that there is "no evidence in the record" that homosexuals make bad foster parents and that sexual orientation has no bearing on one's ability to be a good parent.

Lead the way, Justice!

By Sarah Elizabeth Richards

Sarah Elizabeth Richards is a journalist based in New York. She can be reached at sarah@saraherichards.com.

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