Content area
Full Text
InRosemarieP. v. Kelly B., 2021WL 4697719,2021 Alas. LEXIS 121 (Alaska 2021), on October 8, 2021, the Supreme Court of Alaska ruled in favor of a non-biological, non-adoptive lesbian mother, affirming her award of joint and legal 50/50 shared physical custody of the separated couple's daughter, M.P. Chief Justice Daniel Winfree, writing for the court, upheld the lower court ruling as to its "psychological parent analysis." However, the court declined to uphold the lower court's determination that Kelly Lee Brown was the child's legal parent under a gender-neutral reading of Alaska's legitimization statute. In doing so, it missed an opportunity to answer an important question for LGBTQ Alaskans about parental status of same-sex partners who do not get married.
Rosemarie Peterson and Kelly Lee Brown were together for fifteen years until they separated in 2018. They held a commitment ceremony in Hawaii in 2004 with two ministers presiding. Rosemarie and Kelly decided to have a child together. Rosemarie gave birth to M.R in 2013. The child was conceived by anonymous donor insemination.
When they found out Rosemarie was pregnant, the couple shared the news with friends and family, stating, "we're pregnant." They gave the child Kelly's middle name for his middle name and gave him Rosemarie's last name. Kelly did not formally adopt M.R, apparently after receiving legal advice that adoption would temporarily alter Rosemarie's legal status.
The couple never legally married after Alaska's same-sex marriage ban was struck down in 2014 in Hamby v. Parnell, 56 F. Supp. 3d 1056 (D. Alaska 2014). Alaska fought this ruling until the U.S. Supreme Court decided Obergefell v. Hodges. Nevertheless, Kelly and Rosemarie held each other out to friends and families as a married couple by referring to each other as "my wife."
The Alaska Supreme Court did not appear to doubt that Kelly was the child's mother. The court explained that she was a daily part of the child's life for five years and referred to her as "Mommo" and Rosemarie as "Mommy." The court wrote that Kelly testified about her housekeeping duties and "routinely feeding, bathing, and playing with the child." The court cited testimony from family friends and the preschool teacher about Kelly's loving relationship with the child in further support.
Superior Court Judge Rachel...