Another court misapplies Troxel v Granville and so another nonbio mom loses in Texas

Last month (while I was on my blogging hiatus), the Texas Court of Appeals (Ninth District) ruled against Dana Ruppert's efforts to retain a relationship with the child born while she was living with the child's biological mother, Stephanie Wells.  The facts in the opinion are sparse, but the law is unmistakable.

The opinion reports that the couple began living together before the child, M.J., was born and that their relationship ended in April 2010 with the nonbio mom moving out.  (No indication when the child was born or his age).  The couple did divide care of M.J., and in May they agreed in writing that each would have certain periods of time with him.  The next month Wells stopped the visits, but she allowed them to resume in November 2010.  Between November 2010 and August 2011, the child lived with Ruppert about 50% of the time.  After Wells again stopped the contact, Ruppert filed a court action in November 2011 requesting sole custody and alleging that Wells was abusive towards the child.  The trial court held a hearing.  It did not find that Wells was unfit.  It awarded temporary primary custody to Wells but did give Ruppert weekends and 2012 spring break with M.J.  The appeals court summarized the testimony as showing that Ruppert "filled a role in co-parenting" M.J. when Wells allowed it.

The trial court allowed Ruppert's claim to proceed because it ruled that, as required by Texas law, Ruppert exercised "actual care" and "actual possession" of M.J. for at least six months, ending no more than 90 days  before Ruppert filed for custody.  But the appeals court said she did not have actual "control" of the child, also required, because Wells could change her mind at any time and because Wells made decisions about M.J.'s school.  Wells had given Ruppert written consent to make medical decisions for M.J., but the appeals court said this did not amount to "control" because she never actually had to make any such decisions.

Most disturbing as a legal matter, the court believed its interpretation of the Texas statute was required by the US Supreme Court's ruling in Troxel v. Granville.  I have written about courts' interpretations of Troxel in numerous posts.  Here is an example of how the Wells court gets it wrong.  "While the desirability of compelling Wells to allow Ruppert a right to visitation might be debatable, when viewed from the child's point of view, Troxel does not allow a court to second-guess a fit parent's decision."

Wrong.  Troxel involved grandparents who had never functioned as parents of the children at issue.  The Supreme Court said there were no "special factors" giving a trial court the power to decide that the children's best interests would be served by visiting with their grandparents.  The situation of a same-sex couple raising a child together from birth is just the sort of "special factor" that distinguishes it from Troxel. Fortunately, many courts have acknowledged this distinction.  But many miss the point entirely and treat Troxel as a decision that draws a bright line around a biological or adoptive parent and allows no court challenge to her custody or decision about visitation unless she is unfit.  That's what theNinth District Texas Court of Appeals has done, and the children raised by same-sex couples in the Beaumont, Texas area are the worse off for it.

Heterosexual mother behaving badly

In my circle of LGBT family lawyers, we talk about LBBs, lesbians behaving badly.  This is customarily a shorthand reference to a biological (or legal adoptive) mother who deprives her child of a relationship with her ex-partner, who the child views as also being a parent.  Well, I always say that whatever happens in our families happens in straight families, only more often (since there are more of them).  And a case from Illinois in the last couple of weeks reminds me how true this is.

The family in the case, In re Scarlett Z-D, consists of Jim and Maria and the daughter that Maria adopted as a 3 year old in Slovakia in 2003 while visiting family there.  Jim did not adopt with her because the couple was not married, but he went to Slovakia several times, and was involved in and paid for the process, which took a year.  In 2004, Maria and Scarlett returned to the US and lived as a family with Jim.  For four years, Scarlett called Jim "daddy" and Maria held him out as Scarlett's father.  He did not adopt her, however, and in fact Maria never did a US adoption of her. (This is not required but parents of international adoptees often do it).  It also appears from the initials that comprise Scarlett's last name in the caption of the case that Maria gave the child a last name that hyphenated her name and Jim's name.

When the couple's relationship ended, you guessed it, Maria cut Jim out of Scarlett's life.  Jim filed both a parentage action and a request for custody and visitation rights.  There was a trial that established the close bond between Jim and Scarlett and the harmful consequences of removing Jim from Scarlett's life.  The trial judge was completely sympathetic to Jim's argument but felt bound by the law to dismiss his case. Jim appealed, and the appeals court also said that under Illinois he was not a parent and lacked standing to even bring an action concerning Scarlett's custody.

Illinois is one of the states whose appellate courts have, in my opinion, overread Troxel v. Granville. By that I mean that the courts have attributed more rights to a legal parent than I believe Troxel requires when it comes to the question of court-ordered visitation by someone who is not a legal parent but has functioned as one.  Plenty of other states have found that a person who has fully functioned as a parent to a child, with the approval of the child's legal parent, can get visitation with that child, or even custody, without running afoul of Troxel.

The Scarlett Z-D court repeated pronouncements from other Illinois cases about Troxel but also held the neither Illinois statutory law nor Illinois common law allow a person in Jim's position to petition for custody or visitation.  The court did indicate that the legislature could fix this problem through statutory reform.

And that's where the matter stands in Illinois.  Lesbian legally unrecognized moms have faced this problem there.  And in a particularly horrendous case an FTM transgender father lost all contact with the children his wife gave birth to as a result of jointly planned assisted conception because the court ruled he was legally female, therefore the marriage was invalid, therefore he was not the children's father.

The Illinois legislature needs to act to end such tragic decisions that rob children of parental love and support in this way.

Good news for non-bio moms in California

After my post this week about a dreadful Missouri case, I am especially pleased to report on a terrific case from a California appeals court, although it comes after a biological mom deprived her daughter of her second mom for most of the first five years of her life.

The story of Kristina, the bio mom, and Charisma, the non-bio mom, is pretty typical: joint participation in selecting an anonymous semen donor from a sperm bank; Charisma was there when the child, Amalia, was born, and she cut the umbilical cord; the parents gave the child a last name consisting of their two names hyphenated; Charisma was listed as a parent on a birth announcement, a gift registry, an online message board for women trying to conceive, at a baby shower, and to everyone; the parents took their daughter home and cared for her together for six weeks, after which the Kristina returned to work and Charisma cared for Amalia full-time during the day for seven weeks. (Kristina and Charisma were also registered domestic partners, although that was before that status conferred the parentage presumption in California).

Then Kristina moved out with Amalia and denied Charisma access to the child.

Kristina claimed that Charisma did not care for Amalia long enough to meet the test of receiving the child into her home and holding her out as her own. (This is a statutory test applied to a lesbian co-mom in an earlier case). The court held that there was no duration requirement.

I found this aspect of the case especially important. The Model ABA Act Governing Assisted Reproductive Technology, which I write about often, does say that in the absence of a written consent to a woman's insemination, consent, and therefore parentage, flow from holding the child out as one's own during the first two years of the child's life. The court in this case mentioned this Model Act in a footnote and indicated that Charisma did sign the "patient consent form" at the sperm bank and that she would have signed a written consent pursuant to the Model Act if that Act had been the law in California. I don't like the two year requirement in the Model Act, and the facts of this case are a good example of why.

The case is very important for how it addresses Kristina's claim about her Constitutional rights. The Supreme Court has ruled that parents have a Constitutional right to raise their child. But the case most often cited for that principle, Troxel v. Granville, involved a court that granted visitation rights to grandparents over a mother's objection. It did not tell states how to define "parent." The court's opinion in this case used precisely that reasoning to rule that the case was not between a parent and a non-parent but that, under the fact of the case, Charisma was a parent also. This last point is always obvious in these cases, but many states have interpreted Troxel as though biology was always the line between a parent and a non-parent. Not so. Thankfully, California see that.

A final note. Kristina was represented by the right-wing, anti-gay Liberty Counsel. As heinous as it is for a bio mom to ever attempt to divest her ex-partner of parental status, I find it especially despicable that she would use an organization that opposes all gay rights to argue her case. This is the same group that has thwarted Janet Jenkins's efforts to see her daughter in spite of decisions from the supreme courts of both Virginia and Vermont. Liberty Counsel lost again in court this week. They'll be back in other cases representing bio moms any chance they get.

New Mexico court ruling on lesbian mom likely to have limited impact -- but it's still dead wrong

New Mexico is the only jurisdiction other than DC that grants parental status to a person (male or female; married or not married) who consents to a woman's insemination with donor semen with the intent to parent the child thereby conceived. That means that for cases beginning this year, where conception takes place through donor semen, both members of a lesbian couple are a child's parents if they have both signed an agreement concerning the insemination or if they have both received the child into their home and held the child out as their own.

This law was not passed in time to help Bani Chatterjee and her daughter, who this week lost their right to a parent-child relationship in a 2-1 ruling from the New Mexico Court of Appeals. And because the child was not born to Chatterjee's partner, but was rather adopted by her, the law would not have made Chatterjee a parent in any event.

The court has all the facts it needed to consider Chatterjee a parent. Chatterjee and her partner, Taya King, were together for 15 years, beginning in 1993. In 2000, they travelled to Russia together to adopt a 13-month-old child, but only King completed a legal adoption since same-sex couples cannot adopt there and because there was prejudice against Chatterjee on the basis of her race. For the subsequent 8 years, the couple raised the child together as two mothers. Then Chatterjee moved out and, after an initial period of allowing visitation, King stopped all contact. Chatterjee filed a petition to establish parentage.

All three judges agreed that the New Mexico parentage statute did not allow Chatterjee to be declared a parent. Its previous version of the Uniform Parentage Act allows a man to be presumed a parent if he "openly holds out the child as his natural child and has established a personal, financial, or custodial relationship with the child." It also reads that "insofar as practicable, the provisions of the [UPA] applicable to the father and child relationship apply" to determining a mother-child relationship. Since Chatterjee could meet that test, she asked to be declared a parent. It may be understandable for a court to hold that these provisions do not apply at all to a child adopted by one parent. But the majority went further and said they would not apply to any woman's attempt to be declared a parent. This is a ruling in direct contradiction to the California cases interpreting identical language. But because New Mexico's current UPA explicitly makes a woman a parent of her partner's biological child if the couple consented to donor insemination, this section of the court's reasoning is superceded by the new statute for any child born to a woman's partner and conceived using donor semen.

The majority then dismissed Chatterjee's claim to parentage based on various equitable theories. This is where the dissenting judge parted ways. Even though the New Mexico appeals court ruled in favor of a nonbio mom in 1992, becoming one of the first states to do so, this court decided that neither equitable nor psychological parentage gave Chatterjee the standing to request custody of her child. The dissenting judge reasoned that if Chatterjee could prove the elements of psychological parenthood, including King's fostering of a parent-child relationship between Chatterjee and the child, then Chatterjee should be able to argue for custody.

Chatterjee and her child do get a consolation prize. All three judges agreed that she could request visitation rights and that visitation rights could be granted without violating King's constitutional right to raise her child. King relied on the Supreme Court case of Troxel v. Granville, which overturned a ruling granting visitation rights to grandparents. The New Mexico court, however, distinguished that case on its facts and rightly held that Troxel does not require a court to find a legal parent unfit before it awards visitation to another party.

The good news in the case, as a practical matter, is that the ability to get court-ordered visitation gives a mother in Chatterjee's position enough bargaining power to get an agreement with a legal parent for a continuing relationship with the child. The states that preclude any court-ordered visitation give the legal parent the unilateral power to cut off all contact, even in a case like this where the child is 10 years old and has been raised by both women since her adoption as a toddler.

And, as I said at the beginning of this post, for lesbian couples in New Mexico using donor insemination, full parentage, not just access to visitation, is established for a nonbio mom. For those who adopt, however, as this couple did, this case will remain the law unless Chatterjee appeals to the New Mexico Supreme Court and gets a reversal.

Delaware Supreme Court upholds de facto parent statute and upholds joint custody award

Two years ago, in an opinion I criticized extensively, the Delaware Supreme Court ruled that a woman whose partner was a child's only legal parent (through adoption) lacked standing to obtain custody or visitation when the couple split up. In response to that decision, the Delaware legislature amended its definition of "parent" to include de facto parents, a move I praised as extensively as I had criticized the previous court ruling.

A de facto parent in Delaware is one who:

(1) Has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;
(2) Has exercised parental responsibility for the child [as defined elsewhere to include meeting the child's physical, mental, and emotional needs]; and
(3) Has acted in a parental role for a length of time sufficient to haveestablished a bonded and dependent relationship with the child that is parental in nature.

The legislature made the amendment retroactive so that the mother whose loss prompted the statutory reform could refile for custody, which she did. The trial court ruled earlier this year that Carol Guest (a pseudonym) was the de facto parent of the child, A.N.S, and it awarded her joint custody. The adoptive mother, Lynn Smith (also a pseudonym), appealed.

In a ruling released this morning under the name Smith v. Guest, the Delaware Supreme Court upheld the joint custody award. Smith had appealed on several grounds and lost on all of them. Of greatest significance, she challenged the constitutionality of the statute, alleging that it violated her right to raise her child as set out in the US Supreme Court case of Troxel v. Granville. The Delaware court got it exactly right when it disposed of Smith's argument as follows:

The issue here is not whether the Family Court has infringed Smith’s fundamental parental right to control who has access to ANS by awarding Guest co-equal parental status. Rather, the issue is whether Guest is a legal “parent” of ANS who would also have parental rights to ANS—rights that are co-equal to Smith’s. This is not a case, like Troxel, where a third party having no claim to a parent-child relationship (e.g., the child’s grandparents) seeks visitation rights. Guest is not “any third party.” Rather, she is a (claimed) de facto parent who (if her claim is established, as the Family Court found it was) would also be a legal “parent” of ANS. Because Guest, as a legal parent, would have a co-equal “fundamental parental interest” in raising ANS, allowing Guest to pursue that interest through a legally-recognized channel cannot unconstitutionally infringe Smith’s due process rights. In short, Smith’s due process claim fails for lack of a valid premise.

I could not have said it better myself. I hope this reasoning resonates throughout the country and provides an alternate narrative to the one that has prevailed in some states that take a cramped view -- and certainly not a child's view -- of what makes a parent.

What's the matter with Kansas? NOTHING if you are the child of a lesbian couple

This is how parentage should be determined. The Supreme Court of Kansas ruled yesterday, in Frazier v. Goudschaal, that two children born through donor insemination to a lesbian couple are the children of both parents.  The court interpreted Kansas parentage law to create presumptive parentage for a woman who "notoriously or in writing" recognizes parentage of the child.  The statute itself says "recognizes paternity," but because Kansas is one of the states that incorporates the paternity provisions into determinations of the mother and child relationship "insofar as practicable," the court applied them to the petition of Marci Frazier, the nonbiological mother of the children her partner, Kelly Goudschaal, gave birth to.  The court specifically stated that under Kansas parentage law two parents can be of the same sex. The couple had a coparenting agreement denominating Frazier a "de facto parent," and the court determined that it did not violate public policy to enforce the agreement as long as it was in the children's best interests.

The facts of the case are ordinary enough.  The children had a hyphenated surname and called Frazier "mother" or "mom." They lived as a family unit, and teachers and daycare providers treated the couple as equal parents. The couple split up when the children were about 3 and 5 years old.  They maintained equal parenting time for about six months.  Then Goudschall began reducing Frazier's time with the girls, and shortly thereafter she announced that she was moving to Texas and taking the girls with her.  That prompted Frazier to take court action. The trial court ordered joint legal custody with primary physical custody to Goudschall and reasonable visitation rights to Frazier.

The court rejected Goudschall's argument that Frazier could not be a mother because she was not a biological or adoptive parent, and that her biological maternity automatically rebutted any presumption Frazier might have.  The opinion principally discusses the written agreement of the parties.  A nonbiological mom without a written agreement should still be able to prevail in Kansas, however, because the statute the court applied does not require a writing; "notoriously" recognizing the child is sufficient. A concurring opinion focused only on parentage under the Kansas Parentage Act, citing California's Elisa B. case and New Mexico's Chatterjee case as precedent.

As always happens, Goudschaal cited Troxel v. Granville for the proposition that she has a constitutionally protected right to raise her child.  The court agreed, but found that she exercised that right when she entered the coparenting agreement.  The court actually said she should be able to enter an agreement to share custody "without having the government interfere by nullifying that agreement, so long as it is in the best interests of the children."  This is an interesting twist on the constitutional right of a parent; it suggests that if a court ignores such an agreement that is interference with the parent's rights.

The court here gave more focus to the children than is sometimes found in cases about the status of a nonbiological parent.  It called them third party beneficiaries of the coparenting agreement.  It found they had a reliance interest in maintaining two parents and avoiding the harm of severing the attachments they formed as a result of the agreement. "So what Goudschall really wants is to renege on the coparenting agreement without regard to the rights of or harm to the children, all in the name of constitutionally protected parental rights," wrote the court.  It continued, "Surely, her constitutional rights do not stretch that far."  The court did not want the children to "suffer the consequences of their biological mother's change of heart."

The court also cited Supreme Court precedent for the principle that  "all children -- both legitimate and illegitimate -- be afforded equal treatment under the law." Denying the Goudschaal-Frazier children the opportunity to have two parents ("the same as children of a traditional marriage")  would violate the children's constitutional rights.  Note how far this is from the argument that same-sex couples must be allowed to marry to provide their children with equal rights.  This opinion might actually be the strongest statement that a couple should not have to marry to provide two parents for their children.  This is the diametrically opposite result to that in New York, where the Debra H. case held that a child has two parents if the couple is married but only one if the couple isn't married.

The difference in the New York and Kansas opinions are to a large extent dependent on the parentage statutes of the two states.  It's not that Kansas has a gay-friendly statute.  It's that the Uniform Parentage Act, on which the Kansas statute is based, does not require marriage or biology for a finding of legal parentage.  How sensible for all children.

Congratulations and thanks are due to the ACLU, the National Center for Lesbian Rights, and Washburn University School of Law Children and Family Law Center (under the able leadership of Professor Linda Elrod), for the friend of the courts brief they filed in support of Frazier and her children.

Arkansas Supreme Court approves visitation rights for non-bio mom

In a 5-2 decision, the Arkansas Supreme Court yesterday affirmed a trial court ruling granting visitation rights to a nonbiological mother The case, Bethany v. Jones, has a familiar fact pattern. Alicia Bethany and Emily Jones had been together for five years when Bethany gave birth to a child that she and Jones planned for together. They gave the child Jones as a last name and also gave her a middle name for Jones's grandmother. (Bethany changed the child's name after the break-up). Jones was the child's primary caretaker as a stay-at-home mother for three years. The child called Jones "mommy" and Bethany "mama." She also called Jones's parents, "Grammy" and "Poppy."

The couple split up in 2008 and agreed to co-parent, but Bethany stopped contact soon after. She also began a relationship with another woman, and it appears that she wanted to raise the child in that new family constellation without Jones.

Jones filed for custody on estoppel grounds, but the court does not say anything about the merits of a claim to custody, so I assume Jones did not pursue it. The trial court awarded visitation rights on the ground that Jones stood in loco parentis to the child, and did say that Bethany was estopped from denying that status. Bethany appealed and raised the usual issues about her constitutional rights and about a slippery slope to babysitters getting custody. The court had no difficulty distinguishing the grandparents who sought visitation rights in Troxel v. Granville, the US Supreme Court case on nonparent visitation, from Jones, because of Jones's in loco parentis status. It also dismissed the slippery slope argument, citing a terrific Kentucky case about which I blogged last year.

Arkansas allows stepparents who stand in loco parentis to obtain visitation rights. Bethany had the nerve to say (as bio moms do in these circumstances), that the case establishing those rights could not be applied to Jones because Arkansas does not allow same-sex marriage or domestic partnership. The court quite rightly said that the proper focus was the relationship between Jones and the child, not the relationship between the two adults.

Next month the Arkansas Supreme Court will hear oral argument in the Arkansas v. Cole case, challenging the ban on adoption and foster parenting by anyone living with an unmarried partner (same-sex or different-sex). Of course the legal issues are completely different, but this ruling shows at a minimum that this court is willing to look at matters from the perspective of the child and that the court bears no general animosity to same-sex couples raising children. (And the court did previously strike down an administrative regulation banning gay foster parents, in another case, Howard v. Arkansas.)