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Visitation Case Continues for Utah Lesbian

It’s been a difficult year for Gina Herrera.

On February 16, the Utah Supreme Court handed down a decision that domestic partners who are not a child’s biological parents have no legal standing for visitation rights. Two days after the ruling, Herrera says her former partner of 14 years Hollii Whiting told Herrera she would not let her see their five-year-old daughter Madison any more – a decision Utah law now allowed her to make as the girl’s biological mother.

Ten months later Herrera, with her lawyer Lauren Barros, is still in court fighting to see the daughter she helped raise.

“Honestly, I’m going in with this with my eyes open to the fact that the laws here in Utah aren’t in our favor,” Herrera said. “It’s not like I’m going in expecting this miraculous ruling, but I have to try and fight to see my daughter. It’s been almost a year since I saw her, and I’m not going to give up that easily.”

In May, Herrera pled her case before a state commissioner. He took the motion under advisement and spent the next several months determining whether or not Herrera had a case. In making his determination, he examined the former couple’s paperwork. According to Herrera this included a visitation agreement the former couple made after Whiting successfully petitioned to end their co-guardianship agreement in November, 2006. Herrera previously told QSaltLake that she did not fight to keep guardianship of Madison, only to be able to make medical decisions for the girl.

Herrera said Whiting violated this visitation agreement when she forbade Herrera from seeing their child.

“In that agreement it stated that if either party wasn’t comfortable with [granting visitation], we’d give other person a week’s notice and then seek remedy with the court,” she said.

In a June statement to the Deseret Morning News, Whiting’s attorney Bryant McConkie said his client decided to cut off visitation to keep Madison from being placed in a confusing environment.
“I believe that any parent in Hollii Whiting's position would do just as she had done,” McConkie said. “Essentially, if a parent were sending their child into an environment that undermined and damaged their relationship with the child, that parent would do all they could to change the child's situation.”

In October, the commissioner made his decision. “He found in favor of my ex, saying our agreement wasn’t enforceable,” Herrera said.

Like many non-biological Utah parents in similar circumstances, Herrera says her predicament is the fault of the Utah Supreme Court’s ruling in Jones vs. Barlow. In this case, the high court overturned a Third Circuit Court decision granting Keri Jones (now Equality Utah’s Manager of Programs and Administration) visitation rights to a daughter she had with her former partner Cheryl Barlow from whom she separated in 2003. Under the common law doctrine of “in loco parentis” (Latin for “in place of a parent), the judge ruled that Jones had visitation rights and the responsibility to pay child support because she had acted in the role of a parent in the little girl’s life. Barlow, who had become an evangelical Christian and said she was no longer lesbian, did not want Jones to see her daughter in part because Jones still identified as gay.

Herrera maintains that her agreement with Whiting makes this case different from Jones vs. Barlow, in which the couple had a co-guardianship agreement but no worst-case scenario visitation agreement as Herrera and Whiting later made. And yet, she says the specter of the case keeps coming up.

“You can’t get away from Jones vs. Barlow,” she said. “Of course they try and bring it around to ‘in loco parentis’ all the time. But we’re not claiming ‘in loco parentis.’ This is a contract case because of our agreement.”

Still, Herrera remains hopeful that a judge will determine otherwise. On Dec. 10 she and Barros went before Third Circuit judge Joseph C. Fratto.

“The judge actually took our motion under advisement, which is good news,” she said. This means that Fratto will study Barros’ brief and get back to lawyer and client in writing.

“He seemed very fair,” Herrera said. “He seemed neutral, and he kept trying to be clear. I guess we just wait now. We have no time table, so I’m not sure how long it’ll take before we hear anything back.”

In the event that the judge rules against her, Herrera said she is uncertain how far to take her case.

“I struggle, I’m conflicted about that,” she said. “I struggle because if I took it further and it didn’t go my way, I don’t want to set some negative precedent. I don’t want anyone else to go through what I’m going through.”

“But then I think if I don’t choose to go farther, I have to think about this as a temporary setback. It doesn’t matter how many years it takes, I will be reunited with my daughter. Even if it takes until she’s 18 when she can make choices for herself, she will know everything that happened and why I suddenly vanished from her life.”

She says that she is particularly upset because Whiting’s decision affects not only her, but other non-biological gay and lesbian parents who Jones vs. Barlow has placed in similar situations.

“We have enough struggles as it is as a community,” she said. “My ex claims to be a part of the gay comm. still. But how can she realize that what she’s doing isn’t just impacting me but impacting the whole community?”

And if that community wants anything to change, Herrera said that those gay and lesbian parents who have suffered what she and Jones have need to speak out.

“I think it’s important that if there are more people – and I know there are – that are going thru the same thing and are afraid to talk about it, these people need to make themselves visible if we want anything to change,” she said. “If people aren’t voicing their situations it’s never going to happen.”

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