The Delaware Supreme Court may have put an end to a contentious, long-running dispute between former lesbian partners by denying reconsideration to its unanimous decision issued last month in the case of Smith v. Guest, 2011 Westlaw 899550 (March 14, 2011), affirming a ruling by the New Castle County Family Court that the plaintiff was a de facto parent of the child adopted by her former partner and thus entitled to an award of joint legal custody. The court assigned the parties pseudonyms of Lynn M. Smith (adoptive parent) and Carol M. Guest (de facto parent). Guest's triumph depended on a statute passed by the Delaware legislature in 2009 in response to her prior defeat in the Delaware Supreme Court, which had ruled that the state's custody laws did not recognize the status of de facto parent.
Smith and Guest met in 1994 and began living together in 1995. After living together for five years, they decided their relationship was strong enough and they wanted to have a child. After several attempts by Smith to become pregnant through donor insemination had failed, they decided to adopt. In 2003, Smith adopted a child in Kazakhstan. Guest participated in the process and traveled with Smith to Kazakhstan, but that country does not allow joint adoptions by same-sex partners, so Smith was the sole adoptive parent.
After they returned to Delaware, they sought legal advice about having Guest adopted as a co-parent. They claim they were told that Guest would have to care for the child for at least a year before the Family Court would approve an adoption, and they ended up dropping the matter. Guest played a parental role towards the child over the ensuing year until the parents ended their relationship, and Guest moved out at Smith's request in May 2004. A few weeks later, Smith cut off Guest's contact with the child and Guest filed suit for joint custody. The Family Court granted her petition, based on a de facto parent theory, but the Delaware Supreme Court reversed that ruling in a decision issued in February 2009.
The Supreme Court pointed out that this issue was controlled by statute, and the Delaware Uniform Parentage Act identified only two kinds of parents who could seek custody: birth parents or adoptive parents. The court reviewed at length the history of Delaware's legislation on this issue, concluding that the omission of de facto parents was not inadvertant, while noting that several other states had adopted this concept in light of social changes in family life. The court concluded that whether to allow de facto parents to seek custody was a legislative policy decision for the General Assembly to make.
Media coverage of the decision caught the legislature's attention, and it moved promptly to amend the statute, passing S.B. 84, amending the Delaware Uniform Parentage Act to add "de facto parent" to the section titled "Establishment of parent-child relationship" (Del. Code Title XIII, Section 8-201), and setting out a fact-specific test for determining whether a person was a de facto parent, focusing on how their relationship with the child was established and the nature of such relationship. The provisions are consistent with the tests established in other jurisdictions that recognize de facto parent status. The statute also provided that its provisions "shall have retroactive effect" and that "No Court decision based upon a finding that Delaware does not recognize de facto parent status shall have collateral estoppel or res judicata effect."
Collateral estoppel and res judicata are legal concepts intended to produce finality in litigation. Under collateral estoppel, parties may not re-litigate in one forum an issue that they have already litigated to a conclusion in another forum. Under res judicata, once a court finally decides a legal dispute between the parties, the matter is closed and may not be reopened through a new lawsuit.
The day S.B. 84 went into effect, July 6, 2009, Guest filed a new lawsuit seeking joint custody of the child. Smith argued that the statute was an unconstitutional violation of her rights as a legal parent, and also sought to raise collateral estoppel and res judicata arguments. She seized upon a technicality: Under Delaware law, after a statute is passed the "reviser" of the Delaware Code extracts relevant provisions to be codified. The provisions to be codified – formally published in the state's statutory code – are the substantive provisions. Provisions dealing only with issues of interpretation are not codified. Thus, the amended version of Section 8-201 that appears in Title XIII of the Delaware Code does not include the provisions of S.B. 84 dealing with retroactivity, collateral estoppel and res judicata.
The Family Court rejected Smith's arguments, found that the statute was constitutional and that Guest qualified as a de facto parent and, consistent with the best interests of the child, awarded her joint custody. Smith appealed.
In its unanimous ruling, the Supreme Court decisively rejected both state and federal constitutional challenges to the statute.
Smith based her state constitutional argument in part on the doctrine of separation of powers, arguing that it was inappropriate for the legislature to reverse a decision of the Supreme Court because it disagreed with the court's interpretation of a statute. The court responded that the legislature's action was not a reversal of the court, but rather a decision to consider the policy issues raised by the court. The legislature's action did not say that the court had misconstrued the statute. Rather, it said that the legislature had decided to redefine the concept of parental status, having reconsidered the policy concerns that led to the prior statute. The court also rejected an argument by Smith that the statute violated a state constitutional ban on multi-issue legislation.
More significantly, the court rejected Smith's federal constitutional argument premised on the U.S. Supreme Court's decision in Troxel v. Granville, 530 U.S. 57 (2000), a decision that had struck down a state law under which a court awarded visitation rights to a child's paternal grandparents over the objection of the child's mother, the widow of their son. The Supreme Court had ruled in that case that the constitutional due process rights of a parent would be violated by ordering them to allow access to their child to a "third party" non-parent.
The Delaware Supreme Court rejected the argument that Troxel made S.B. 84 unconstitutional. Writing for the court, Justice Jack B. Jacobs pointed out that Guest was not suing as a "third party" but rather as a "de facto parent," a status that the grandparents in Troxel could not satisfy. "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," he wrote. "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."
Smith also argued that S.B. 84 violated her equal protection rights, contending that the legislature had inappropriately acted specifically to overturn her victory in the prior lawsuit. But the court was unconvinced, since the legislature had rethought a basic policy issue and amended the statute to apply to all people who might claim de facto parent status, not just Guest. The new law was made retroactive for all cases, not just her case. Although, in fairness, the court strains a bit when it comes to the last provision of the statute, which provided that no court decision premised on Delaware's failure to recognize de facto parents should have collateral estoppel or res judicata effect, since that provision looks an awful lot like a legislative attempt to give Guest a second shot at gaining a custody order. On the other hand, any other potential de facto parent who had lost their claim before the Family Court on this basis would also be benefited by that provision. As the court points out, the statute does not specifically name or specifically confer a cause of action on Guest.
The court also decisively rejected Smith's argument that the provisions on retroactivity, collateral estoppel and res judicata were not part of the statute due to their omission from the codified version. As long as a bill is passed and signed into law, the entire bill becomes part of the law of Delaware, said the court. Furthermore, because Guest's custody claim was previously rejected on standing grounds, her status as a de facto parent was never litigated on the merits, so the use of collateral estoppel or res judicata to preclude her new lawsuit would be inappropriate in any event.
Justice Jacobs ended the court's decision with an expression of empathy for the parties who have been litigating over this for so long. "We also are sensitive to the emotional considerations and frustrations that both parties have experienced throughout this process," he wrote. "The General Assembly, however, has made a public policy decision to recognize persons, such as Guest, as legal 'parents' who are entitled to seek custody of their minor children. Our judicial role requires us to give full meaning and effect to those legislative changes." Perhaps it is not entirely coincidental that the General Assembly legislated in favor of establishing civil unions for same-sex couples just after the court issued its new ruling in this case, reflecting the changed legal environment for LGBT people in Delaware.
Because the court rejected Smith's federal constitutional argument, it remains open to Smith to seek review in the United States Supreme Court of the federal constitutional question. Given the long odds against that court granting review, however, it is possible that this case is near its end.
Guest is represented by the ACLU of Delaware. Richard Morse and Michael Arrington of Parkowski, Guerke & Swayze argued the case on behalf of the ACLU. Morse praised the decision to a reporter from the News Journal, in an article published on April 19, saying that it was important to "preserving the rights of children in non-traditional families and ensuring them stable, long-term relationships with the people who raised them."
Smith was represented by Michael P. Kelly of McCarter & English. She reacted bitterly to the court's decision, telling the News Journal that it was part of a larger gay rights social agenda. "Parental rights have been dismantled," she said. "It will take a few years for people to realize what it means, but parents don't have the right to care and custody of their children any more. Another individual now has the right to sue you for rights to your children. It's downright scary." Her attorney, Kelly, said he was "troubled" by the ruling, but said he had great respect for the Delaware Supreme Court. "I am just a dumb Irishman," he said. "What do I know?"
The News Journal reported that attempts to contact Guest for comment had been unsuccessful.