The Oklahoma Supreme Court ruled 8-1 in Schnedler v. Lee, 2019 WL 2588577, 2019 Okla. LEXIS 49 (June 25, 2019), that “a non-biological same-sex parent stands in parity with a biological parent,” and that once standing requirements are met, “the court shall adjudicate any and all claims of parental rights – including custody and visitation – just a the court would for any other legal parent, consistent with the best interests of the child.” The lone dissenter, Justice Richard Darby, claimed that the court had issued an “advisory opinion” that was beyond its purview, and should have used “judicial restraint” and based its holding on “the narrowest grounds possible.” Instead, the court treated it prior precedent on the issue of same-sex co-parent standing as obsolete and substituted an entirely new analysis. Chief Justice Noma Gurich wrote the court’s opinion.
Lori Schnedler and Heather Lee met each other in the early 2000s, while both were employed by the Bartlesville Police Department, their relationship progressing from co-workers to co-habitants of an apartment. After Lori did overseas military service, they bought a house together and decided to have a child. “A work friend of Heather’s, Kevin Platt, agreed to serve as the sperm donor,” wrote Justice Gurich, but after donating his sperm, was not an active participant in the relationship between the women and their child. Until the break-up of the couple years later and the resulting litigation, Kevin, who was married and had children from his marriage, did not have a relationship with the child. After the break-up and the ensuing litigation, Kevin got involved and began to establish a relationship with the child.
The child was born in July 2007, either years before the Supreme Court decided Obergefell and a 10th Circuit decision, for which cert had been denied, resulted in marriage equality being available in Oklahoma. The women’s relationship ended in April 2015, as the marriage equality issue was coming to a head in the courts. Heather left the home they had shared, taking the child with her. Although she allowed Lori regular visitation for seven months, Heather “suddenly denied Lori any further contact with their daughter,” wrote Gurich. “Since that time, Lori has neither seen nor spoken with J.L.”
Lori filed suit in December 2015, petitioning for an adjudication of the child’s custody, visitation, and child support, relying on the doctrine of in loco parentis, which the Oklahoma courts had recognized to some extend in prior same-sex parent disputes of this nature. Heather objected to the petition “and sought to join Kevin, the biological father and genetic donor, as a necessary party to the proceedings. Additionally, both Heather and Kevin brought cross-claims in the action, requesting the trial court’s determination that Kevin was J.L’s ‘biological and natural father’ and therefore entitled to full parental rights of custody, visitation, and support,” even though Kevin “was not demonstrably involved in J.L.’s life” before the lawsuit began. Heather and Kevin both challenged Lori’s standing to bring the action, and the trial judge actually agreed, interpreting the state’s existing precedent of Ramey v. Sutton, 2015 OK 79, 362 P.3d 217 (Okla. 2015), as requiring the sperm donor to “consent to, and encourage, the non-biological partner’s parental role” in order to find parental standing for the co-parent. In this case, the sperm donor was a third party custody claimant as well and opposing Lori’s petition. The Court of Civil Appeals affirmed the trial court’s dismissal of Lori’s petition. The Oklahoma Supreme Court granted certiorari “to clarify the standing of non-biological co-parents in same-sex relationships, and to create a meaningful and comprehensive framework for the adjudication of the same.”
First, the court found that the lower courts had misconstrued its earlier holding, which it insisted did not empower the sperm donor to stand as a barrier to the co-parent’s standing in a case like this one. Going further, the court found its prior precedents using the doctrine of in loco parentis to be inadequate for present purposes, particularly in light of the U.S. Supreme Court’s concern, expressed in Obergefell v. Hodges, that children being raised by same-sex parents should not have to suffer their families being considered as “lesser” to traditional heterosexual families.
“In announcing today’s decision,” wrote Justice Gurich, “we are mindful of the need to establish practical guidelines for state courts. We conclude that, to establish standing, a non-biological same-sex co-parent who asserts a claim for parentage must demonstrate – by a preponderance of the evidence – that he or she has engaged in family planning with the intent to parent jointly[,] acted in a parental role for a length of time sufficient to have established a meaningful emotional relationship with the child, and resided with the child for a significant period while holding out the child as his or her own child. As always, a court shall assess these factors with the best interests of the child as its foremost aim. When a continuing relationship with the non-biological parent is in those interests, a court must honor its validity and safeguard the perpetuation of that bond. In such proceedings, parties may continue to invoke equitable doctrines and defenses, e.g., equitable estoppel.”
The court specifically rejected the use of in loco parentis as the deciding doctrine in such cases. Justice Gurich wrote that “in loco parentis – at root, a legal fiction – is ‘by its very nature, a temporary status.’ Temporary and uncertain parental status only exacerbates the frequency of cases like today’s and creates an inherently more unstable environment for the children of same-sex couples. Their children see them as mom or dad. The law should treat them as such.” The court asserted that its holding was “consonant with the constitutional protections guaranteed in Obergefell.”
In his dissent, Justice Darby argued that the case could be resolve in Lori’s favor by a finding that the requirements of Ramey v. Sutton had been met in this case and that Lori could be accorded in loco parentis standing. However, he argued, the court’s reformulation of the rules for finding standing for co-parents was unnecessary, and this an “advisory opinion,” and “This Court does not issue advisory opinions.”
Lori Schnedler is represented y Christopher U. Brech of McDaniel Acord & Lytle PLLC, Tulsa, and Michael F. Smith of McAfee & Taft, also Tulsa. Heather Lee is represented by Bryan J. Nowling, of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., also of Tulsa. “No appearance for Kevin Platt, Third Party Defendant/Appellee,” states the clerk’s summary.Tags: in loco parentis, Obergefell v. Hodges, Oklahoma Chief Justice Noma Gurich, Oklahoma custody dispute, Oklahoma family law, Oklahoma Justice Richard Darby, Oklahoma Supreme Court, Ramey v. Sutton, same-sex co-parent, same-sex co-parent custody, same-sex parents, Schnedler v. Lee, sperm donor role in same-sex parent custody dispute