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Nevada Supreme Court Affirms Parental Rights for Former Gay Partner of Adoptive Dad

Posted on: June 28th, 2017 by Art Leonard No Comments

The Nevada Supreme Court has unanimously affirmed a District Court decision granting a gay man paternity over a child adopted by his former partner.  Four members of the court based their June 22 ruling on the concept of “equitable adoption,” while the other three based their ruling on an interpretation of the state’s “presumption of paternity” under Nevada’s parentage statute, NRS 126.041. The case is Nguyen v. Boynes, 2017 Nev. Adv. Rep. 32, 2017 Nev. LEXIS 45, 2017 WL 2733779.  Justice Ron D. Parraguirre wrote the opinion for the majority of the court, and Justice Lidia S. Stiglich wrote for the concurring justices.

Ken Nguyen and Rob Boynes began dating in November 2009.  “At some time during the relationship,” wrote Justice Parraguirre, “a decision was made to adopt a child.”  They approached Catholic Charities of Southern Nevada, but that organization would not arrange joint adoptions for same-sex couples, so the men agreed that Ken would adopt the child and then Rob would later initiate a second-parent adoption.  They went through Catholic Charities’ procedure beginning in July 2012, and in February 2013, Catholic Charities notified Ken that it was placing a newborn child with him for adoption.  Both men “were present to receive the newborn child,” and both participated as parents after the placement.

When Ken’s co-workers arranged a baby shower, it was held at Rob’s house. The child was baptized at the Desert Spring United Methodist Church, with both men standing in as fathers and listed on the baptism certificate.  However, shortly after that they ended their relationship. “Rob asked Ken to add his name to the child’s birth certificate, and Ken refused,” wrote Justice Parraguirre.  The formal adoption by Ken was finalized in October 2013.  “Both parties sat at the plaintiff’s table during the adoption hearing, and Ken reiterated once again that he would not place Rob’s name on the child’s birth certificate, nor would he allow a second-parent adoption.”

Despite Ken’s position on the legal issues, the men continued to share parental duties, as they had done from the outset. Indeed, “Since the child’s first day of placement with Ken, he has primarily been under Rob’s care.”

“The child stayed overnight at Rob’s house during the first night of placement and continued to do so for more than a month,” after which he spent weekends at Ken’s house. After two months of placement, Ken decided to hire a neighbor as a full-time babysitter, but after several weeks they reverted back to their previous arrangement of the child staying with Rob during the week until Ken enrolled the child in daycare in May 2014.  “Rob primarily took the child for doctor visits and provided most of the baby supplies,” wrote Parraguirre.  “Additionally, in November 2013, Rob took the child to North Carolina to visit Rob’s sister during Thanksgiving.”

Rob filed a petition for paternity and custody in the Clark County Family Court Division in May 2014. After a full hearing, Judge Bill Henderson decided that Rob was entitled to a “presumption of paternity” under the Nevada parentage statute, and held that the men were to have joint legal and physical custody.  Judge Henderson also referred to the “equitable adoption” theory in reaching his decision.  Ken appealed the order.

The Supreme Court explained that equitable adoption is “an equitable remedy to enforce an adoption agreement under circumstances where there is a promise to adopt, and in reasonable, foreseeable reliance on that promise a child is placed in a position where harm will result if repudiation is permitted.”

“This case concerns whether there was an agreement by the parties to adopt the child together that was formed at the beginning of the adoption process, and whether accompanying that agreement was an intent and promise by Ken to allow Rob to adopt the child second due to Catholic Charities’ policy disallowing joint adoptions for same-sex couples,” wrote Justice Parraguiree. “The parties do not dispute their non-biological relations with the child,” he continued, so “Nevada’s Uniform Parentage Act is not implicated.  We thus conclude that the equitable adoption doctrine is applicable to enforce an adoption agreement under the unique factual circumstances of this case.”

The Supreme Court agreed with District Judge Henderson that Rob had satisfied the four element test set forth in Nevada’s case law: Intent to adopt, promise to adopt, justifiable reliance, and harm resulting from repudiation. The Family Court’s decision would be reviewed under the “abuse of discretion” standard, so Judge Henderson’s decision to recognize Rob as a father would be upheld if substantial evidence supports it.

The court found evidence supporting every aspect of the four-element test: that the parties intended that both would ultimately be adoptive fathers of the child, that Ken had promised Rob to facilitate his adoption second, and that Rob was an integral factor in the adoption process and was “intimately involved.”  Indeed, there was testimony at the Family Court hearing by officials from Catholic Charities that both men participated in the process, “including the background check, post-placement visits, orientation, and adoption classes.”

Furthermore, from the commencement of the placement of the child with Ken, Ken treated Rob as a second parent and Rob took on parental responsibilities. Furthermore, Rob was regarded as a father to the child by others, who testified at the hearing.  In a footnote, Parraguirre mentioned that “the district court found that the deterioration of Ken and Rob’s relationship during the summer of 2013 seemed to be the driving factor in Ken’s decision to not follow through with the second adoption for Rob.”

The court also found plenty of evidentiary support for Rob’s reliance on Ken’s promise. “Rob dedicated a substantial amount of his time to the adoption process.  Moreover, Rob primarily cared for the child post-placement.”  Rob provided the baby supplies and “made substantial changes to his house and lifestyle to accommodate the child’s needs, which included changing one of the rooms in his house to a nursery.”  The court found that Ken’s repudiation of the promise produced harm: “the deprivation of Rob’s emotional and financial support to the child.”  Since letting Ken repudiate his promise would be to the child’s detriment, “equity cannot allow such a result,” insisted Justice Parraguirre.

The court upheld the grant of joint legal and physical custody, finding that the Judge Henderson had not abused his discretion in light of the trial record, and rejecting Ken’s allegations of disqualifying misconduct by Rob.

The court also rejected Ken’s argument that the parentage and custody award violated his constitutional rights as an adoptive parent. He argued that the district court’s ruling was unprecedented, and had treated the men differently than it would have treated an unmarried heterosexual couple.  “Here,” wrote the court, “Ken does not challenge the constitutionality of a particular statute; rather, he alleges generally that the district court treated the parties differently than it would have a heterosexual couple.  However, ‘child custody determinations are by necessity made on a case-by-case basis,’ and, here, ‘there is nothing to indicate that the ultimate decision of the district court turned on [the couple’s sexual orientation].”

Justice Stiglich, writing for herself and two others, contended that “the Nevada Parentage Act provides a more appropriate analysis in this case than the doctrine of equitable adoption.” She pointed out that in a prior case, St. Mary v. Damon, 309 P.3d 1027 (2013), the court had “clearly concluded that Nevada law does not preclude a child from having two mothers under the Nevada Parentage Act,” stating in that opinion that “the Legislature has recognized that the children of same-sex domestic partners bear no lesser rights to the enjoyment and support of two parents than children born to married heterosexual parents.”

Consequently, she wrote, “Pursuant to St. Mary, if a presumption of parentage can apply to a woman in a same-sex relationship, there appears no reason why the provision of [the parentage statute] cannot apply to a man in a same-sex relationship. Because Rob submitted ample evidence to support the presumption of parentage under [the statute], I concur with the majority’s holding affirming the decision of the district court, but on different grounds.”

Rob is represented by the Pecos Law Group and Bruce I. Shapiro and Jack W. Fleeman, of Henderson, Nevada. Ken is represented by McFarling Law Group and name-partner Emily M. McFarling of Las Vegas.

Nevada Supreme Court Answers Questions of First Impression in Lesbian Custody Dispute Involving Donor Insemination and Co-Parenting Agreement

Posted on: October 8th, 2013 by Art Leonard No Comments

The Nevada Supreme Court ruled unanimously on October 3 that a child can have two mothers and that a co-parenting agreement made by two women before their child was conceived through anonymous donor insemination with one woman providing the egg and the other being the gestational mother, can be enforceable as an agreement by parents who are presumed to have the best interest of their child at heart.   Reversing a trial court decision that treated one of the women as a mere surrogate mother with no legal rights, the court returned the case to the trial court for a new determination of parental rights.

Justice Nancy M. Saitta wrote the opinion in St. Mary v. Damon, settling several questions of first impression under Nevada law, and giving heavy weight to California decisions that interpret similarly-worded statutes.

Sha’Kayla St. Mary and Veronica Lynn Damon moved in together about a year after their relationship began, and decided to have a child together.  According to St. Mary, they decided to have Damon contribute the egg for in vitro fertilization with sperm through an anonymous donor, the resulting ovum to be implanted in St. Mary, in order that both of the women would have parental status, St. Mary as the birth mother and Damon as the genetic mother.   After the procedure was performed they both signed a co-parenting agreement, under which they agreed that if their relationship ended, they would “each work to ensure that the other maintained a close relationship with the child, sharing the duties of raising the child, and make a ‘good faith effort to jointly make all major decisions” affecting the child.

St. Mary gave birth to the child in June 2008, and was listed on the birth certificate as the child’s only parent, but the child was given a hyphenated last name to reflect both mothers.  About one year after the child’s birth, the women ended their relationship, St. Mary moved out of the home, and they disagreed about how to share their time with the child.  However, St. Mary cooperated with Damon by signing an affidavit declaring that Damon was the biological mother of the child, which Damon used to get a court order to have the child’s birth certificate amended to list her as a mother.  The court declared that Damon was “the biological and legal mother” of the child, and ordered that the birth certificate be amended to add Damon’s name as a mother.

Then St. Mary filed the lawsuit seeking to establish custody, visitation, and child support, but Damon responded that as the biological mother she was entitled to sole custody, attaching the 2009 court order.

The trial judge treated St. Mary as a mere surrogate.  Damon had filed a motion to limit the court’s evidentiary hearing to the issue of whether St. Mary would have visitation, arguing that Damon’s sole parental status had been established by the court’s order.  The trial judge agreed with Damon, excluding St. Mary’s custody claim from the hearing, and focused solely on the visitation issue.  At the conclusion of the hearing, the trial court found that St. Mary should have “third party visitation,” finding that she “has no biological or legal rights whatsoever under Nevada law.”  Further, the trial judge found the co-parenting agreement unenforceable, concluding that it fell outside the scope of enforceable surrogacy agreements, which under Nevada law could be made only by a married couple with a surrogate.

St. Mary appealed from the denial of her parental rights, and the Nevada Supreme Court unanimously reversed, finding that the trial judge was mistaken about Nevada law.

Following the lead of the California courts, the Nevada Supreme Court held that a child can have two legal mothers, and that a co-parenting agreement such as the one made in this case could be enforceable.  Most significantly, the court found that under Nevada statutes St. Mary could be deemed a parent to the child because she was its birth mother under circumstances where, as she claimed, the women had agreed that both were intended to be parents of the child.  The trial judge had misconstrued the effect of Damon’s prior legal action to establish her parental rights, said the court.  Although the prior court order had established her status as a legal mother of the child, it had not ordered that St. Mary’s name be removed from the amended birth certificate.

That is, finding that the child had two legal mothers was not inconsistent with the prior decision.

The facts are contested however.  Damon claims that St. Mary was intended to be a surrogate and not an intended parent, and that the “co-parenting agreement” was actually an invalid surrogacy contract that the women had signed because the clinic that performed the procedure required a written agreement.  When the case goes back to the trial court, there will have to be an evidentiary hearing to determine whether St. Mary or Damon is more credible, but Justice Saitta’s narration of the facts implicitly suggests that St. Mary’s account of what happened makes more sense.

Nevada is now a domestic partnership state, but that development post-dates the relevant facts in this case, as the child was conceived in 2007 and born in 2008, and Damon’s initial action seeking a declaration of her status took place in 2009, which is also when St. Mary filed her complaint in this case.  Had the women been registered Nevada domestic partners at the relevant time, the law would have recognized both as parents of the child.  But many lesbian couples have children without undertaking to register as partners or marry, so the court’s ruling remains important, and continues a trend in applying the up-to-date version of the Uniform Parentage Act as construed in California and followed in New Mexico to encompass the legal situation faced by non-traditional families.