The Legal Minefield When Two Mommies Split Up

King Solomon, as some accounts have it, figured out who was a baby’s real mother by decreeing the child should be chopped in half and then watching each of mom’s reaction. Such legal remedies are frowned upon these days, so when it comes to a fight over motherhood, the courts often have a tough time of it, as a recent case in Colorado proves.

In a case that could also be the plotline of a movie, if it isn’t already, Elizabeth (Lisa) Limberis and Sabrina Havens, who had been living together since 2000, tried to have a kid through artificial insemination and failed. A few years later, Havens had sex with her friend Marc Bolt and conceived. Neither she nor Bolt told Limberis about the encounter and said she’d got pregnant from artificial insemination.

The baby, known in court documents as A.R.L., was born in 2008. No dad was listed on the birth certificate, as Bolt made it clear he wasn’t interested in being part of the kid’s life. The baby got Limberis’ last name and they all lived in Limberis’ home together.

Limberis and Havens shared custody of baby A.R.L. — in 2010, Limberis even applied to be an adoptive parent, with Havens’ consent, but was turned back by the court, not because she was unfit, but because there was no legal category under which she could be considered a mom. The couple had never married–same-sex marriage was not legal in Colorado until May of 2013.

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Alas, then things began to go south between the two. (The court papers don’t list why, but the whole sleeping around thing can’t have helped.) By 2011, they’d split up. Not amicably. Havens soon soured on letting Limberis have any parental input into A.R.L.’s life whatsoever.

If this all sounds familiar to opposite sex divorcing couples, it is, except that Limberis had a tough trudge uphill to get any parental rights at all. Essentially Havens’ team argued, and the court agreed, that baby A.R.L. already had two biological parents and could not, under Colorado’s Uniform Parenting Act, have a third. There wasn’t much relevant case law on Limberis’ side and she was stuck in parenting limbo.

But with enough legal wrangling, including having Bolt officially divest himself of all parenting rights, the Colorado court finally reversed its earlier position December of 2013 and granted that Limberis who, according to the Denver Post has spent less than an hour with A.R.L. since 2011, was also the child’s mother. If this really were a movie, the scene would cut to a car door opening and a confused 5 year old being led out to meet a new, extra mother that he or she probably doesn’t remember.

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One of the unexpected outcomes of shifting cultural definitions of family is that institutions are having to take a harder look at what actually constitutes a parent. Colorado is just one of very few states that have addressed this question so far. Since divorce is not unique to heterosexual couples, other states will have to face it soon. In Limberis’ case, she had no biological claim to the child. She had no marital claim to the child. She had lived apart from the child longer than she had lived with her. Limberis only had a history of mothering the kid and an overwhelming desire to stay in her life.

Perhaps the wider question here is: If it comes to a fight, who has the right to be a mother? In this case, it seems to be the woman who doesn’t give up. The ball is now in Havens’ court. She has the right of appeal.