Lesbian partner awarded joint custody of child following couple's breakup.

A New Jersey court has ordered a lesbian couple to share custody of their son following the couple's breakup, marking a significant change in the legal landscape of family law practice.

"It's the first case that I'm aware of where a court has granted joint custody to a nonbiological lesbian coparent who does not have any legally recognized parental relationship to the child," said Kate Kendell, executive director of the National Center for Lesbian Rights in San Francisco.

New Jersey Superior Court Judge Vincent Grasso awarded joint custody to the two-year-old boy's nonbiological parent, known in court papers as R.E.M. (R.E.M.v. S.L.V., No. FD-15-748-98N (N.J., Ocean County Super. Ct. Nov. 2, 1998).) The lawyer for S.L.V., the biological mother, has said he will appeal the decision.

In his opinion granting joint custody to R.E.M., Grasso wrote, "There is no reason here to treat R.E.M.'s claim for custody and/or visitation any differently due to the fact that the dispute is between two persons of the same gender or, more specifically, between two former partners of a lesbian relationship."

Kendell said that her organization has handled many custody cases involving lesbian couples over the past 22 years. She said that historically "the nonbiological parent is shut out completely on the issue of standing and doesn't even get to demonstrate to the court how very much she was a part of the child's upbringing. This court recognized that and honored that relationship."

Kendell said that most custody cases she's seen have involved a homosexual partner whose heterosexual ex-husband or ex-wife has tried to block shared custody proceedings by arguing that lesbians or gay men do not make suitable parents.

"Those types of cases still happen, but the R.E.M. case is entirely different," Kendell said. "Here, two lesbians planned to have a child together and to live as a family unit. There is no heterosexual spouse. They then split up, and the biological parent asserts that the other parent is not entitled to have a continuing relationship with the child."

Similar cases have come before trial courts across the country, but New Jersey judges have recently been presented with several. The Ocean County case is the first to come out in favor of the nonbiological parent. In Essex County, New Jersey, a nonbiological lesbian mother lost her fight in September for joint custody of the twin children born to her and her partner. That case is on appeal, and similar cases are pending in Mercer and Union counties.

In the Essex County case, Superior Court Judge Philip Cummis wrote, "There is no basis for the relationship between the plaintiff and defendant to be afforded the same protection as a heterosexual marriage because New Jersey does not recognize same-sex marriages." (Amy Westfeldt, Woman Denied Joint Custody of Her Ex-Partner's Children, Associated Press, Sept. 24, 1998.)