Biology No Factor in Mo. Same-Sex Custody Fight

KANSAS CITY, Mo. (CN) - A lesbian mother who is not biologically related to her children can seek custody following a split from her partner, a state appeals court ruled Tuesday.

Melissa McGaw says she was in a romantic relationship with the children's mother, Angela McGaw, and participated in Angela's decision to get pregnant through artificial insemination.

Although never married, the women had a commitment ceremony and Angela legally changed her last name to McGaw.

The McGaws raised the twins together from 2004 until they broke up in 2007, and continued to share expenses for the children and followed a visitation schedule until June 2013.

Melissa McGaw claims at that time Angela refused to let Melissa see the children and threatened to call the police if she tried to come get them. She hasn't seen the children since.

After Melissa McGaw filed for custody on the basis that Angela McGaw broke a contract by denying her access to their children, a state court denied her claim finding she lacked standing.

A three-judge panel of the Missouri Court of Appeals' Western District agreed that Melissa McGaw lacked standing to bring a breach of contract suit and affirmed the lower court's decision. But it noted that the woman has an available remedy to seek custody under Missouri law, which allows non-biological parents to seek custody and visitation - particularly in cases where the biological parent has deliberately barred the other parent from seeing their children.

"Melissa is not simply 'any third party that comes along,'" Chief Judge Alok Ahuja wrote for the panel. "In this case, a right of action under state family code is being asserted by an individual who was specifically invited by a biological parent to act as a parent of the children at issue, and in fact acted in that capacity for an extended period of time.

"This is not a case where custody or visitation rights are being asserted by an extended-family member, a family friend, a paid caregiver, or some other third party who was never requested by the biological parents to function as a parent of the children. The fact that the party seeking custody or visitation in this case previously acted as a parent to the children, at the biological parent's request," distinguishes this case, Ahuja wrote.

In a separate opinion, Judge Robert Clayton III agreed with his colleagues that Melissa McGaw should be allowed to pursue an independent custody and visitation action.

But he said that in light of the U.S. Supreme Court's landmark ruling in Obergefell v. Hodges - which in effect legalized same-sex marriage in the United States - the McGaw case should be transferred to the Missouri Supreme Court "to determine whether, under the circumstances of this case, the above-referenced statutory scheme is 'plainly inadequate.'"

"Without specific statutory direction from the Legislature, courts will continue to face difficult factual circumstances involving the parent-child relationship using the six words 'the welfare of the child requires,'" Clayton wrote. "It is the children of same-sex couples who will be most severely affected by being limited in their opportunity to maintain bonds with a party who is not a biological parent but who has, as was alleged in this case, 'functionally behaved as the children's second parent.'"

In a statement, Melissa McGaw said she is "so grateful to be recognized by the court. I love my children more than anything and I want to be there for them."

The ruling is considered not only a win for gay parenting rights, but also a win for same-sex non-biological parenting rights.

"Today's ruling is a great victory for Missouri's children," said Cathy Sakimura, Family Law Director at the National Center for Lesbian Rights, in a statement. "Every family deserves legal protection and respect. The court recognized that the law should support families, not destroy them, and that children benefit when they can receive love and support from both parents."

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