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The Utah Supreme Court dealt a heavy blow Friday to unmarried parents raising children related by blood to only one of the parents.

Issuing a split decision in the case of a 5-year-old girl conceived in the context of a lesbian relationship, the justices said Keri Lynne Jones does not have the right to seek visitation with the child - even though Jones and her former partner decided to have her together, raised her together for a time, and gave her both of their surnames.

The girl's biological mother, Cheryl Pike Barlow, says she is no longer gay and doesn't want Jones, who was joined to her in a Vermont civil union, to see the girl.

Jones - who had been traveling to Texas for visitation every other weekend until Barlow refused to allow it last year - said Friday she is devastated.

"Someone is going to have to explain this to her [the girl]," she said. "There is nothing in her little body that tells her we are not related . . . I can blame people and say they are the reason we are not going to be together, but she is not going to understand it."

Although this case involves a gay relationship, Friday's ruling also applies to heterosexuals. An unmarried straight partner who has not adopted a child would also be barred from making a case in court, said Kathryn Kendell, director of the National Center for Lesbian Rights and a Utah native who argued Jones' case before the high court.

"It doesn't matter if they were a parent in the same household for two years, as in Keri's case, or 10 years," Kendell said. "If the adults split up and the biological parent says, 'I'm cutting you off from any relationship with your child,' the biological parent is perfectly free to do so under this majority ruling.

"I cannot imagine anyone except the most ardently anti-gay foe thinking it is a good outcome for children, when their parents split up, to be cut off from a person they have bonded to and loved as a parent."

Others - like attorney Frank Mylar, who represented Barlow in the case - argue biological parents must have the ability to sever both their own and their child's relationships with those they have chosen not to marry and who have not adopted their child.

Mylar was traveling in India on Friday and was unavailable for comment on the ruling. But the Alliance Defense Fund, which litigates cases involving religion and is affiliated with Mylar on the case, released a statement calling the ruling an affirmation of parental rights.

"Protecting the well-being of a small child trumps the desire of a legal stranger to usurp the care and protection of that child's mom," said the group's Joe Infranco. "The Utah Supreme Court ruled correctly in affirming Cheryl Barlow's right as a natural parent and putting an end to visitation with a woman who has no legitimate legal relationship to the child."

Friday's majority opinion reverses a December 2004 ruling by 3rd District Judge Timothy Hanson granting Jones visitation with the girl under a common law doctrine known as "in loco parentis," in which a person acts as a parent although they have no blood or legal ties to a child.

Hanson ruled the girl would benefit "both emotionally and financially" from contact with Jones. The judge found Jones had been an "equal partner" in the decision for Barlow to have a child, sharing in the selection of the sperm donor, participating in the child's birth and care and becoming the child's co-guardian.

The women broke up when the girl was 2, after Jones had an affair with another woman. Barlow now lives in Texas.

Recognizing a "new class of parents" would "overstep" the bounds of the courts and invade the territory of lawmakers, said the majority of the high court Friday. The in loco parentis relationship can be terminated by biological parents like Barlow, they said.

While the majority recognized "mutual bonds of affection" that can be formed between a child and adult such as Jones, they determined "carving out a permanent role in the child's life for a surrogate parent" would take away from a legally recognized parent's right to direct the upbringing of their child.

Chief Justice Christine M. Durham dissented, saying the case should be treated like a typical divorce where two parents are quarreling over child custody and visitation. The ultimate issue, Durham said, is what is in the best interest of the girl.

As the nontraditional family becomes more prevalent, more children will form parent-child relationships with adults who have no biological or legal connection to them, she said. The child "ought to be protected from losing a relationship with someone who is, as far as the child is concerned, a parent," Durham wrote.

Jones said Friday's ruling is shortsighted. "There has to be room for different kinds of families," she said.

Kendell said the court has failed to protect those who have no other recourse under the law. For gays, marriage, or adoption to ensure parental rights are not an option as it might be for others.

The ruling, Kendell said, puts Utah at odds with a majority of at least a dozen states that have ruled differently when presented with the same question.

Barlow, once known as a gay rights activist in Utah, had argued she was the primary caretaker of her daughter and that a ruling against her could open the door to gay marriage and adoption.

Jones points to the time she spent with the girl and recommendations by both attorneys appointed to represent the girl and other professionals that visitation is in her best interest.


* Tribune reporter PAMELA MANSON contributed to this report.

While the Jones v. Barlow case has been pending in the Utah Supreme Court, lawmakers like Sen. Curtis Bramble, R-Provo, have been hedging their bets.

Bramble's SB 248 would ensure a biological parent's rights trump those of a non-biological parent - unless a judge concludes the biological parent is unfit or to sever a relationship with the unrelated parent would "harm" the child.

A year ago, Gov. Jon Huntsman Jr. vetoed a similar but broader bill. But this year, with amended language, Bramble says his legislation has Huntsman's blessing.

The bill is now before the full Senate after passing a committee this week.

The legislation has been criticized by the Family Law Section of the Utah Bar Association and the Utah Domestic Violence Council, but supported by the conservative Utah Eagle Forum and the Sutherland Institute.