Russell v. Pasik

Russell v Pasik

Russell vs. Pasik is a case involving a same-sex (female) couple with children. The parties each had two children from artificial insemination. The children are referred to as biological half-siblings. Each child has a hyphenated last name with both Pasik and Russell (the opinion is silent on which order the names are in). When Russell began denying Pasik visitation with her two children, Pasik filed a Petition for timesharing, which the lower court recognized as a viable cause of action over Russell’s objection to standing. This appellate (certiorari) case arose out of the denial of Russell’s motion to dismiss. Typically certiorari review is not available for a denial of a motion to dismiss, but the court recognized that because there is a constitutional privacy interest of a parent in the raising of her children, the state would necessarily be interfering with that right by simply allowing the cause of action to continue, so the appellate court has jurisdiction. Next, the court considered whether or not the trial court departed from the essential requirements of law in denying the motion to dismiss. The dispute in this case surrounds the question of whether or not Pasik is a “parent” as the statute defines that term. In her petition, Pasik defines herself as not a legal parent, but as a de facto or psychological parent, so the court must determine whether or not such a designation would entitle her to standing as a parent. The law is clear: those who claim parentage on some basis other than biology or legal status do not have the same rights, including the right to visitation, as the biological or legal parents. The court also considered whether or not Russell had waived her right to privacy by inviting Pasik to jointly raise the children, but the court found that that issue was not raised in the pleadings, and even if it had been it is unclear whether such a waiver could have occurred. Due process arguments were also considered and rejected. The writ was issued, and the cause of action dismissed. Essentially, the Court refused to redefine “parent” judicially, deferring to the legislature for such an undertaking. Look for such revision to occur legislatively in the future to cover situations as presented in this case.