Art Leonard: N.C. Appeals Ruling Limits Extent of Partner's Parenting Rights

Link: Leonard Link
by Arthur S. Leonard

Full text by permission.

Earlier in May, we reported on the North Carolina Court of Appeals decision in Mason v. Dwinnell, holding that the same-sex partner of a birth mother could seek joint custody and visitation rights with a child born during the relationship of the women, if the birth mother had acted in such a way as to waive her constitutional rights to exclude third parties from contact with her child.  In that case, issued May 6, the court found that the birth mother had indicated from the outset her intention that her partner be an equal parent to the child (including executing a written agreement manifesting such intent), and had encouraged the development of a parent-child bond.

For some reason, our daily westlaw search that turned up the Mason case did not turn up a companion case issued the same date by the same court, also involving a same-sex couple in a child custody/visitation dispute, where the decision went the other way.  We just learned about this through an article in the North Carolina Lawyers Weekly newspaper, published on May 12, which turned up today for the first time on our daily westlaw newspaper database search.

The companion case is Estroff v. Chatterjee, 2008 WL1944858 (May 6).   The same Justice Geer also wrote for the court in this case.  She indicated that the result was controlled by the Mason decision, but that the facts compelled a different outcome, and the court affirmed the trial court's decision to dismiss the petition for custody and visitation brought by the biological mother's former same-sex partner.

The facts are starkly different from the prior case.  In this case, the two women, rather far apart in age, met when one was the professor teaching a course in which the other was enrolled.  They are 13 years apart in age.   Several years into their relationship, the younger decided to have children.  The older was not an active participant with respect to this decision; the opinion suggests that she agreed that the younger could have and raise children in the context of their relationship, but there was no express understanding that the older woman would be considered a parent.  In the event, the older woman did perform the insemination with donated sperm, and was present at the hospital for the delivery (of twins).  But during the pregnancy, which was difficult, bio-mom's mother actually came to live with her and was the primary caregiver through the pregnancy -- and was also present at the delivery.  According to the trial record (the trial court denied a pretrial dismissal motion, finding the need for a trial on the question of waiver of constitutional rights), when a nurse at the hospital addressed the older partner as "mom" she was sharply corrected by bio-mom.

There was no written parenting agreement or express agreement between the women that the older partner be considered a parent to the twins.  She did participate in raising them for the time the relationship continued, but the hearing record, as summarized by Judge Geer, suggests that bio-mom actively resisted the idea of older partner being a "mother" to the children and was uncomfortable with occasional suggestions that was the case.  When she decided to end the relationship and move out, she voluntarily allowed considerable visitation at the beginning with the idea that she would cut it down as the children became established in their new home.  When she started cutting down the visitation time, the former partner sued for custody and visitation rights.

Based on this record, the trial judge found that bio-mom had not waived her primary constitutional rights, and thus the court would not make a custody determination using a best interest standard to evaluate the older woman's claim.  The NC Court of Appeals affirmed.  As it had stressed in the Mason ruling, the sexual orientation or sex of the adult parties to the case was irrelevant.  The issue, in a contest between a natural parent and a "third party," was whether the natural parent had waived her constitutional rights to the extent that the other party could overcome the usual right to exclude third parties from contact with children.  In this case, the court of appeals found that the trial judge reached an appropriate conclusion based on the hearing record, the standard of review being whether there is evidence in the record to support the trial court's conclusion.  As usual in family law cases, a trial court's factual conclusions for which there is evidentiary support are usually preclusive on review, even if another court might have reached different conclusions through its interpretation of the same evidence.

There was quite a bit of argument in this case about "intent," as Estroff argued that if Chatterjee intended not to waive her rights, this was not clearly manifested to Estroff, Chatterjee allowing Estroff to form an attachment to the twins.  But the court said that the question is not whether the intent was clearly manifested, but rather whether it existed.  In this case, the trial judge found Chatterjee's evidence credible that she did not intend to waive her rights by treating Estroff as a mother of her children, and that she had not treated Estroff in that way.

The court also emphasized that it had not adopted the doctrines of parenthood by estoppel or de facto parenthood in Mason.  Rather, it had adopted the view that in the case where a parent has waived her constitutional primacy, a trial court could use the best interest test to evaluate the custody/visitation claims of a third party who has been serving in a parental role to the child.   In a footnote, the court emphasized that the disposition of this case was NOT about standing.  That is, the trial court dismissed the case after hearing not based on a finding that Estroff lacked standing, but rather based on a conclusion that Chatterjee had not waived her constitutional rights as a natural/legal parent.

[jw]