Appeals panel cites statute in same-sex custody case

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Cathy Sakimura, family law director at the National Center for Lesbian Rights, applauded the court's ruling as a "victory for Missouri's children."

Cathy Sakimura, family law director at the National Center for Lesbian Rights, applauded the court’s ruling as a “victory for Missouri‘s children.”

KANSAS CITY, Mo. (AP) — A Kansas City woman who had unsuccessfully been seeking joint custody of two children she had with her lesbian partner may seek joint custody under a state statute, according to a ruling Tuesday from a Missouri appeals panel.

The Missouri Court of Appeals for the Western District said Melissa McGaw “has an available statutory remedy” under a Missouri statute that allows people who are not legal parents to seek custody if it’s in the best interest of the child. The appeals ruling said that statute “provides a basis for a non-biological parent to commence an action seeking child custody and visitation.”

McGaw had been seeking joint custody of the children she and her partner, Angela McGaw, had with an anonymous donor in 2004. The couple, who had not married, separated in 2007 and had a joint custody arrangement until 2013, when Angela McGaw discontinued that arrangement.

Melissa McGaw sought joint custody in circuit court. But Angela McGaw argued Melissa McGaw had no biological relationship to the children and asked the court to dismiss the case. The lower court agreed, saying Melissa McGaw didn’t have standing under Missouri laws on unmarried couples.

Melissa McGaw then appealed and sought custody in part based on a breach of contract with her former partner.

The appeals panel said Melissa McGaw’s appeal didn’t show a breach of contract had occurred and affirmed the lower court’s decision.

But the lower court also said the state statute on non-biological parents could apply in Melissa McGaw’s case because “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.”

Cathy Sakimura, family law director at the National Center for Lesbian Rights, applauded the court’s ruling as a “victory for Missouri’s children.”

“The ultimate outcome of this case… is that the court said, Yes, this statute exists, also applies to you and you can use it to seek custody of your children if you need to do that,” said Sakimura, who represented Melissa McGaw.

Kimberly Humphrey, a Kansas City area lawyer for Angela McGaw, did not immediately return a call seeking comment Tuesday.

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