Although the parenting rights of people in same-sex couples have generally been on the rise—particularly in the wake of the Supreme Court’s 2015 ruling in Obergefell v. Hodges and the legalization nationwide of marriage by same-sex couples.  But a recent opinion from the Idaho Supreme Court, Doe v. Doe, is a reminder that the rights of lesbian co-parents remain in uncertain, particularly for couples who are not married. This case also illustrates the role the U.S. Constitution plays both in protecting parental rights and allocating them.

In the Idaho case, two women, known only as “Jane Doe” and “Jane Doe I” were in a non-marital, romantic relationship for four years before agreeing to start a family using an anonymous donor. Jane Doe I conceived and gave birth to a child, raised jointly with Jane Doe.  The court quickly relabels Jane Doe I as “Mother” and Jane Doe as “Partner,” presaging its legal conclusion that only one of these women—Mother—has rights to the child they jointly planned for and raised. According to the court, without the consent of “Mother,” “Partner” has no right to maintain a relationship with the child.


At the time this child was born, it was not clear whether Idaho law permitted so-called second-parent adoption, where a biological parent consents to add her partner as a second, legal parent.  This couple did not pursue that route.  They also did not marry—an act that might well have given the partner parental rights under a rule that presumes a woman’s spouse is the second parent of her offspring born during the marriage.  The dispute arose after the couple broke off their romantic relationship, and, eventually, Mother unilaterally severed all contact between Partner and the child.  The issue in court came down to whether Partner could be recognized as a parent or quasi-parent based on the couple’s actual and intended joint parenting, and the court’s answer was no.


The ruling turned on the court’s conception of Mother’s parental rights.  A legal parent’s right to exclusivity is protected by the Fourteenth Amendment, which has been interpreted since the 1920s to provide strong protection for parental rights. One aspect of those rights is the ability to exclude other people from the child’s life, whether they be teachers, friends, relatives, or caretakers. The right to exclusivity was reinforced in the U.S. Supreme Court’s ruling in Troxel v. Granville (2000), which drew a stark line between parents and non-parents. (The right to exclude does not extend to other legal parents, such as biological fathers with legal rights.

The difficulty in determining the rights of a lesbian co-parent is that courts have generally not recognized any constitutional rights for the non-biological co-parent (in the Doe case, Partner) that are equivalent to those of unwed fathers. It is thus largely the case that her rights turn, in some fashion, on the consent or approval of the biological parent.  Several state supreme courts have held that parental rights can be shared based solely on a co-parenting agreement with an unmarried partner. These rulings premise the sharing of parental rights on consent, just as the adoption laws do, but allow consent to be expressed in a less formal way.  But a more popular approach is to recognize the doctrine of de facto parentage, which permits a court to parental or quasi-parental rights to a person because he or she has functioned in a parental role. But this doctrine is also predicated on the consent of an established legal parent. In its traditional formulation, the doctrine requires evidence that the legal parent actively invited and fostered the relationship between the de facto parent and the child. Thus, one cannot become the de facto parent if the child’s parent objects at the outset.


The Idaho Supreme Court in the recent case rejected this approach, holding that the biological mother’s constitutional rights cannot be diluted or relinquished based solely on functional parenting with a partner, even if done with the biological mother’s consent.  Partner had no status that would allow her to seek custody or visitation with Mother’s child.


Other courts have found ways to square constitutional parental rights of one adult with functional parenting by another.  For those courts, if the mother has consented to the creation of the relationship, even if informally, then she has relinquished the right to demand exclusivity if severing the de facto relationship would not be in the child’s best interests.  These courts do not think about co-parent claims as a dispute between a parent and a non-parent. Rather, they view them as a dispute in which both women are natural parents in the first instance based on their intent to parent and actual parenting contributions. In a dispute between two fit parents, as in the average custody fight during a divorce, courts can resolve it based on a simple best-interests-of-the-child analysis because neither adult has superior constitutional status.


Idaho’s approach leaves co-parents and their children in the lurch.