Download PDF

This article reviews recent state court cases in the area of family law which concern rights of custody and visitation. These decisions are of interest because they indicate the degree to which the definition and role of parents have been increasingly shaped by courts. The cases demonstrate how various states have chosen to intervene to apportion the rights of biological and adoptive parents in relation to the claims of other unrelated persons who have been closely involved in the lives of both the parents and their children.

With one exception, all of the opinions in this article involve custody and visitation relationships where one party has adopted a child, or children, and the other party has not, or where one party is a biological parent and the other party is not. When the relationships in question deteriorated and the parties separated, the non-parent sought custody rights, and, in the alternative, visitation rights, and the parent opposed those claims. The general legal concept of “de facto” parent status has been used by judges lawyers, and academics who face the question of how non-traditional families should be treated. As noted above, all but one of the opinions reviewed here apply some variant of the de facto parent concept.

The de facto parent doctrine identifies and names the legal status of a non-parent who is in the household of a parent and child and who takes on significant responsibilities for the child’s welfare. By virtue of close involvement with the child over a relatively long period, the third party establishes a relationship with the child or children analogous to that of a parent. While the test varies among states, generally, a de facto parent is someone who performs parental functions, with the legal parent’s consent, and has fostered a relationship with the child for a significant period of time.1

Two Massachusetts cases, issued within days of each other, contain strong majority opinions and dissents concerning whether Massachusetts should adopt de facto parent status as part of its family law.2 The de facto parent questions presented by these cases include:

(a) How does the existence of de facto parents as a class with greater rights than other third parties (including some relatives) but fewer rights than legal or biological parents affect the fundamental constitutional rights of parents to make decisions concerning the care and support of their children?

(b) What consideration, if any, should be given to “coparenting agreements” or other expressions of intention by James A. Haynes made between persons when their relationship was viable in determining the visitation rights of a de facto parent when, at a later point, those rights are strongly contested by a legal parent?

(c) Under what circumstances can, or should, courts create and recognize de facto parent status and relationships using their equity powers, and where should courts defer to elected officials to enact such laws?

(d) Does the creation of de facto parent status alter the normative assumptions about the best interests of the child upon which courts generally rely?

Aside from a cluster of de facto parent opinions, one Maryland opinion stands alone because it touches upon the legal definition of the term “mother” in the context of birth certificate information and it does so in the context of Maryland’s Equal Rights Amendment. At a minimum, the case of In re Roberto d. B. allows a legally sufficient birth certificate to be issued in Maryland which does not name the woman who gave birth to the infant because that woman is not the child’s “mother.”3 As a result of this holding, twins born through a normal delivery will not have any person listed as their mother. Their birth certificate will name only the male, who supplied sperm and arranged an in vitro fertilization, as their father.

The Maryland court reaches its result by holding that, because males named as fathers may challenge paternity and successfully defeat the claim, females must, under the law, have an equal right to deny maternity and prevail. To require a woman who gives birth to a child to be listed on the birth certificate as its “mother” is a violation of Maryland’s prohibition on discrimination based upon sex. While the purported effect of this opinion is merely to create an exception to current practice in maintaining vital statistics, its reach in family law is potentially far greater. This opinion will be further explored later in this article.4

In another case, the Minnesota Supreme Court considered the constitutionality of state custody and visitation statutes in a dispute between a woman who adopted two children from China and her former partner who did not adopt the children but who claimed both custody and, in the alternative, visitation rights because she had been deeply involved in the lives of the children over several years.5 The Minnesota court accepted, on the record below it, that although SooHoo did not adopt, she and Johnson co-parented the children. For example, SooHoo participated in selection of child-care providers and schools; SooHoo and Johnson attended school conferences together; Johnson listed SooHoo as “mother number two” in information provided to the school; SooHoo was involved in the children’s homework, extra-curricular activities, meal preparation, and appointments with doctors, and she took the children on vacation to visit her family. According to the record relied upon by the court, Johnson did not object. After their relationship dissolved, Johnson allowed SooHoo only minimal contact with the children. The lower court denied SooHoo custody, but allowed extensive visitation. It also ordered both SooHoo and Johnson to seek or continue counseling.

Johnson appealed, and the Minnesota Supreme Court considered her challenge that the state laws on third party custody were facially unconstitutional and also unconstitutional as applied. The court accepted that Johnson had a fundamental right in the care, custody, and control of her children. The court then determined that the right was not absolute and that the state had a compelling interest as parens patriae in such matters as requiring school attendance and forbidding child labor. In addition, the court found an affirmative interest in promoting relationships between a child and someone in loco parentis to that child as a means of promoting the child’s welfare.6

The Minnesota Supreme Court held that SooHoo was a de facto parent under Minnesota’s statutory test. That test was narrow enough, the court held, to pass the strict scrutiny required by the U.S. Supreme Court.7 The Minnesota Supreme Court found a part of the state’s visitation law unconstitutional because it placed the burden of proof on the parent to prove that visitation would be harmful to the child. The court placed the burden on the third party claiming visitation to show, by clear and convincing evidence, that the proposed visitation would be in the child’s interest.8

Maryland’s intermediate appellate tribunal, the Court of Special Appeals, adopted the de facto parent concept without a specific legislative enactment in the case of S.F v. M.D.9 This case did not involve assertion of a custody claim by the de facto parent but only a dispute about visitation. The Maryland court declared that in the absence of a statute or judicial precedent to the contrary a de facto parent, seeking visitation over the objections of a parent, need not show exceptional circumstances or parental unfitness. The Maryland Court of Special Appeals looked to the record of the trial court which found that the appellant had served the functional role of a parent for the first three years and eight months of the child’s life and introduced the term de facto parent into the opinion as a synonym.10 The Court of Special Appeals found that the lower court had not abused its discretion in failing to award visitation to appellant.

In a similar case, Maryland’s Court of Special Appeals awarded visitation to a de facto parent. In Janice M. v. Margaret K.11 The court denied custody to the de facto parent and affirmed the lower court’s ruling that the parent would retain custody. The opinion states that the U.S. Supreme Court’s decision in Troxel did not modify S.F. v. M.D.12 While defending its earlier decision, the Maryland court also emphasized the restrictive, limited effect of S.F v. M.D. which “will not open the floodgates to claims of de facto parenthood….”13 Recently, the Maryland Court of Appeals heard on appeal the Court of Special Appeals decision of Janice M. v. Margaret K. The court questioned in oral argument whether Maryland had adopted the concept of de facto parent status.14

In Pennsylvania, a more complex factual situation came before the Superior Court this year in the case of Jacob v. Schultz-Jacob.15 Jacob (appellee) and Schultz-Jacob (appellant) lived together for nine years, during which they underwent a commitment ceremony in Pittsburgh and entered into a civil union in Vermont. After their relationship ended, a dispute arose involving the custody, visitation, and support of four children. Two of the children were nephews of Jacob, whom she adopted: A.J. and L.J. The remaining two children:, Co. J. and Ca. J., were Jacob’s biological children through artificial insemination by Carl Frampton (also named as an appellee), a long-time friend of the Schultz-Jacob. Frampton was apparently persuaded by Schultz-Jacob to act as a sperm donor, and Frampton continued to take an active role in the children’s lives, including making voluntary financial contributions to their support.

When the case reached the Pennsylvania Superior Court, Jacob had been awarded shared legal and partial physical custody of A.J. and L.J. Legal and physical custody of Co. J. and Ca. J. was shared with Frampton. Jacob voluntarily relinquished custody of L.J. to Schultz-Jacob (who was awarded primary physical custody of L.J.) and began to pay for his support. Schultz-Jacob filed for review of the award of custody, and to join Frampton as an essential party because of his potential liability for support payments. Schultz-Jacob argued that the children’s best interests and her in loco parentis status (stipulated by the parties) should have caused the trial court to award her custody.

The Pennsylvania Superior Court employed an abuse of discretion standard of review rather than conducting de novo review of the lower court’s decision. It determined that a third party in loco parentis to a child had standing to litigate a custody claim, but that there was a presumption in favor of biological or “natural” parents as to the merits of a custody dispute.16 The court did not reverse the lower court’s award of custody based upon any finding below that the children’s best interest required a different result as to custody.

The remainder of the opinion analyzed the relationship and obligation of Frampton as an essential party, potentially liable to pay child support. The Pennsylvania Superior Court did not dwell on Frampton’s role as a mere sperm donor because he voluntarily sought and assumed a role in the lives of his biological children. He contributed financial support, failed to contest an award of partial custody, encouraged the children to call him “Papa,” and expressed an intention to move closer to the children in order to spend time with them.17 The court predicated Frampton’s support obligation, in part, on the theory of equitable estoppel by finding that Frampton had accepted responsibilities for the children and therefore would not be excused from supporting them. The opinion does not state whether the enforceable, equitable right belongs to the children, appellant, appellee or some combination.18 However, Frampton was held liable for some level of support.

The final opinion discussed in this article differs significantly from the others in that it embraces a state constitutional issue. In the case of In re Roberto d.B.,19 the initial question presented was whether a birth certificate can be issued without the name of the woman who gave birth listed as the mother. The Circuit Court for Montgomery County denied a request by the appellant, Roberto d.B., that her name be removed because she was a “gestational carrier” and did not expect or desire to be the parent to twins born as a result of the implantation of fertilized eggs in her uterus.20 The appellant filed an appeal to the intermediate appellate court, the Court of Special Appeals. However the Maryland Court of Appeals took jurisdiction over the case before any action by the Court of Special Appeals. As explained by Chief Judge Bell, writing for the majority of the Maryland Court of Appeals:

The appellant is the genetic father of the twin children, having provided his sperm to fertilize donated eggs. The egg donor, not a party to this case, is the genetic provider of the egg. The appellee is the gestational carrier of the fertilized eggs that developed in her womb, despite having contributed no genetic material to the process.

... The appellant’s primary contention is that the parentage statutes in Maryland, as enforced by the trial court below, do not “afford equal protection of the law to men and women similarly situated.” Maryland’s Equal Rights Amendment (citations omitted) specifies that “[e]quality of rights under the law shall not be abridged or denied because of sex.” The appellant contends that because Maryland’s parentage statutes allow a man to deny paternity, and do not, currently allow a woman to deny maternity, these statutes, unless interpreted differently, are subject to an E.R.A. challenge.21

The majority opinion cites numerous cases from Maryland and other jurisdictions, but Chief Judge Bell does not assert that any case directly holds that paternity statutes which fail to provide an opportunity for a woman who has given birth to challenge maternity violates the provisions of any constitution or statute. The majority dismisses the “best interest of the child” standard as irrelevant to this factual situation. There is no contest as to parental rights when the gestational carrier does not wish to assert any claim, and the physical act of giving birth is presumed not to be dispositive. The majority also determined that, because there is no evidence of unfitness on the part of the appellant to be the custodial parent, there is no need to weigh the best interest of the twins.22

The majority comments on adoption as a method for deletion of a name from a birth certificate.23 The majority also includes the appellant’s “…additional arguments that we need not address to resolve this case.” These arguments concern the possible categories of female parentage: birth mother as gestational carrier, egg donor as genetic mother.24 Finally, Chief Judge Bell responded to a vigorous dissent by Judge Cathell by asserting directly that the majority does not define what a “mother” is and does not create an “intent standard” by which a woman who does not intend to be a parent may deny maternity.25

Three judges dissented from the four-judge Maryland Court of Appeals majority opinion. Judge Cathell attacked the majority for failing to defer to the legislature on issues so fundamental to society. He argued that the reach of the majority opinion extends far beyond the limited, administrative, and record-keeping matters it purportedly addresses:

In my view, if ever there was an instance for deference to the legislative branch of government—to permit it an opportunity to set public policy—it is this case. Instead, less than seven unelected (in contested elections) judges, are, in essence, stating that it is good public policy for the people of this State to permit the manufacturing of children who have no mothers—even at the moment of birth.26

The dissent also pointed to the faulty logical analysis by the majority. Taken on its own terms, the dissent argues that the majority fails to understand paternity law.

Neither appellant nor the woman that carried the child through the gestation period deny that she bore and delivered the child and that it came out of her birth canal. If appellant or either woman were asserting the same issue that exists in paternity litigation, the majority might have a point. What the majority fails to realize in its opinion, is that what a man is doing when he challenges paternity is that he denies his particular involvement in fertilizing an egg and thus he asserts he is not the particular or correct father of the child—a man is not asserting that the child has no father at all.27

A second dissent by Judge Harrell, joined by Judge Raker, focused on the lack of an adequate factual record from the circuit court, and that no argument was offered on behalf of the twins, the egg donor or the nominal appellee—the un-named “gestational carrier.” There was no brief or oral argument on behalf of any party other than the appellant, and the dissent characterized that as “…woefully inadequate to support the license taken by the majority opinion.”28 The dissent would have remanded the case to the circuit court for creation of a complete record.

Conclusion

The cases reviewed here, however briefly, represent a sampling of how courts in different States have applied and changed concepts within family law. In Massachusetts, the reason to adopt the concept of de facto parent was as a judicial response to the reality of “non-traditional families.”29 The Court of Special Appeals in Maryland found the same need to expand the range of parental status and adopted what it characterized as a strict test for de facto parent status.30 The status of that test currently awaits a decision by the Maryland Court of Appeals.

Finally, in In re Roberto d. B., the Maryland Court of Appeals cited the possibilities of reproductive technology as the reason to limit, rather than expand, parent status:

The law is being tested as these new techniques become more commonplace and accepted; this case represents the first challenge in Maryland. The case sub judice presents a novel question of law, one of first impression in this Court: must the name of a genetically unrelated gestational host of a fetus, with whom the appellant contracted to carry in vitro fertilized embryos to term, be listed as the mother on the birth certificate when, as a result, children are born?31

It remains to be seen how much alternative relationships and reproductive science will remake family law in the state courts.

* James A. Haynes is an attorney in Baltimore.

 

Endnotes

1 Robin Fretwell Wilson, “Undeserved Trust: Reflections on the ALI’s Treatment of De Facto Parents,” in Reconceiving the Family: Critical Reflections on the American Law Institute’s Principles of the Law of Family Dissolution (Robin Fretwell Wilson, ed., 2006), available at http://ssrn.com/abstract=825664.

2 See Youmans v. Ramos 711 N.E.2d 165 (Mass. 1999) and E.N.O. v. L.M.M. 711 N.E.2d 886 (Mass. 1999). Both cases contain an analysis of the de facto parent concept and dissenting critiques of the role of the judiciary in adopting it without legislative action. See also Adam Narris, Are You My De Facto Mommy? Third-Party Visitation Rights: A Case Comment on Youmans v. Ramos 35 New England Law Review 3, 685-716. 3 923 A.2d 115 (Md. 2007).

4 The four-vote majority opinion, filed May 16, 2007 in this case, is not fully consistent with the later opinion in which the court of appeals held by a four-vote majority (Raker, J. concurring in part and dissenting in part, Bell, C.J. and Battaglia, J. dissenting) that the Maryland Equal Rights Amendment does not require the state to establish or recognize marriage between persons of the same sex. Conaway, et. al. v. Deane, et. al., No. 44, September Term 2006, filed Sept. 18, 2007, _____ A.2d _____ (2007).

The different results and analysis in the two opinions might be explained by variations in the court’s membership. The court of appeals consists of a chief judge and six judges. Maryland allows for the recall of retired judges. Retired Judge Eldridge participated in the court’s deliberations in In re Roberto d. B., and voted with the majority, but was not a participant in Conaway. Judge Greene, the most recent appointee, sat only on Conaway, and voted with the majority. Judge Raker sat in both cases and dissented in In re Roberto d. B. and dissented in part and concurred in part in Conaway. Judge Wilner, now retired, was the only member of the Court to join the four vote majority in both opinions. Chief Judge Bell wrote the Court’s opinion in In re Roberto d. B. but did not cite the case in his dissent. Judge Battaglia cited the opinion five times in her eighty-page dissent. Battaglia dissent, slip op. at 33, 53, 54, 56, 77.

At the start of October 2007, the court of appeals had two vacant seats awaiting appointment and confirmation. The durability of In re Roberto d. B. and Conaway as precedent will reflect the philosophy and temperament of the new members of the Court.

5 SooHoo v. Johnson 731 N.W, 2d 815 (Minn. 2007).

6 SooHoo at 822 (citing Lehr v. Robertson 463 U.S. 248, 258 (1983), London Guar. & Accident Co. v. Smith 64 N.W.2d 781, 785 (1954)). The affirmative proposition that the Court has not only the power but the duty to decide which relationships in a child’s life should be “promoted” places a difficult burden on judges, who must decide what relationships deserve special consideration amid the conflict of litigation and predict the future needs of the child and capacities of various adult parties seeking a piece of the child’s life. The factual and legal situations which must arise would surely tax the wisdom of the wisest court.

7 SooHoo at 820-822 (citing Troxel v. Granville, 530 U.S. 57 (2000)).

8 Id. at 824.

9 751 A.2d 9 (Md. App. 2000).

10 Id. at 12, 15-16.

11 910 A.2d. 1145 (2006).

12 Janice M. at 1152.

13 Id.

14 Caryn Tamber, Idea of De Facto Parent Gives Judges Pause, The Daily Record, May 31, 2007, at 1B (“Maryland Law”).

15 923 A.2d. 473 (Pa. Super. 2007).

16 Id. at 477, 478.

17 Id. at 481.

18 Id. at 480.

19 Supra note 3.

20 Id. at 118.

21 Id. at 119, 120.

22 Id. at 130.

23 Supra note 4, at 119.

24 Supra note 14, at 124.

25 Supra note 15, at 125.

26 Id. at 135.

27 Id. at 133,134.

28 Supra note 4, at 141.

29 E.N.O. at 891.

30 Janice M. at 1152.

31 In re Roberto d.B., at 117. The majority appears to regard the development of reproductive science and the evolution of individual choice as inexorable forces, as if contemporary events and ideas were beyond analysis or change. Of course, human communities are not capable of infinite change, and change and improvement are not synonymous. The very need for courts suggests otherwise. 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].