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Regent Law Professor Selected To Provide Expert Legal Authority in Controversial Case

Occasionally a judge, within the authority granted him or her by judicial canons, will consult an outside legal expert on complex issues of law. Experts provide current insight and invaluable research which allow the judge to effectively consider all aspects of even the most intricate issues.

In late February a justice contacted Lynne Marie Kohm, John Brown McCarty Professor of Family Law at Regent Law, requesting her expertise on the important components of a case involving interstate child custody and recognition of a past relationship.

Under its de facto parent doctrine, a California court granted a woman visitation rights to her former lesbian partner’s natural daughter. The natural mother has since been married, and she and the step-father have lived with the child in Alabama for the past 5 years. Alabama’s judicial and legislative traditions are to protect the natural parent as superior to any other party asserting custodial rights.

It is at the intersection of these jurisdictions that Kohm’s legal expertise on family law has been requested.

“This is a case that most states are not equipped to handle,” said Kohm. “Many middle and high courts are muddled on what is required by the Full Faith and Credit Clause, the Parental Kidnapping Prevention Act (PKPA), and the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA).”

What’s more, Kohm says the facts of the case present issues that are easily tangled with political agendas, have complex constitutional and state sovereignty questions, and have little precedent from which to guide a decision. “The scholarship on these issues is slanted in favor of homosexual rights,” said Kohm, “but it is clear that a case such as this cannot be about the parent; it has to be about the child. The law really does work to protect the best interest of the child even under these difficult circumstances.”

In addition to being an important opportunity for Kohm to weigh in as an authority on critical issues of the day, she recognizes the educational value of this project for her students. Accordingly, she has created an assistantship with five law students to tackle the research responsibilities.

Since the beginning of March, rising 2L John Bailey and rising 3L’s Jared Birckholtz, Antionette Duck, Joshua Nunnally, and Stephanie Reidlinger have been assisting Kohm in researching the application of the de facto parent doctrine, the effects of granting full faith and credit where the original court’s ruling does not coincide with the current state’s public policy, and the doctrine of the primacy of the natural parent.

Birckholtz, Duck, and Reidlinger have continued the project into the summer and have worked hard to assist Kohm in the final preparation of the memorandum of points of law and authority.

Duck sees the experience as invaluable. “The argument we’re making is the future of family law,” she said. “The crux of the issue is whether one state can define what a ‘parent’ is for a sister state, and subsequently, whether a state must give full faith and credit to a sister state’s parentage rulings.”

Duck believes that as the “family” is redefined, so too will “parents” be, an assertion Reidlinger agrees with. “As long as any third party meets the requisite factors such as a close bond with a child, a significant period of residence with the child, and significant caretaking of the child, that person may assert custodial rights to the child,” said Reidlinger. “If taken to its natural end, natural parents could be faced with any ex-lover(s) coming back and asserting custodial rights over the child as long as they can meet a vague list of factors.”

Involvement in important research that will impact pressing legal issues has ignited a passion for family law in Reidlinger who will turn her research into an article for publication. “At the center of all these cases is always a child,” said Reidlinger. “After reading the bulk of the cases on this issue, it seems to me that many of these ex-lovers, same-sex or not, are using these children as a bargaining chip or a way to advance an agenda and there is absolutely nothing appropriate about using a child for any of these purposes.”

Kohm is certain the analysis of this issue should not extend past that of the traditional basic interests of the child. “Family law must be properly applied to this case, and I am honored to present research which I hope can be a roadmap for other states in the future,” she said.

Keep up with Kohm and hot topics in family law by following her Family Restoration blog.

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