The Oklahoma Supreme Court has unanimously ruled that a woman who spent ten years raising a child with her former same-sex partner can use the equitable doctrine of “in loco parentis” to achieve standing to sue for custody or visitation of the child. Ramey v. Sutton, 2015 OK 79. The November 17 opinion, written by Justice Joseph M. Watt, drew on the U.S. Supreme Court’s June 26, 2015, marriage equality decision, Obergefell v. Hodges, and its 10th Circuit analogue, Bishop v. Smith, which was denied review by the Supreme Court in October 2014.
Kimberly Sutton proposed marriage to Charlene Ramey in 2004, according to Justice Watt’s opinion. The women exchanged rings and considered themselves to be life partners, even though at that time same-sex couples could marry nowhere in the United States except Massachusetts and Oklahoma did not recognize such marriages. They decided to have a child together and to raise the child jointly, with Sutton conceiving the child through donor insemination. A male friend of the couple agreed to donate sperm, with the understanding that he would have no parental responsibilities or rights. The baby boy was born on March 22, 2005.
“Ramey attended all ultrasound appointments, shared in related pregnancy costs, and was present and participated in the delivery of their newborn,” wrote Justice Watt. “Sutton prepared a baby book for their child identifying both Sutton and Ramey as parents. Sutton gave a card to Ramey congratulating her on becoming a ‘mother’ to their son and that she would be a wonderful mom.” Ramey supported the family during Sutton’s pregnancy and the child’s early months. Sutton returned to work in the winter of 2005. Due to Sutton’s work and sleep schedule, Ramey ended up being the primary caregiver to their son, who always referred to Ramey as “mom” but, according to the opinion, “did not being to refer to Sutton as ‘mom’ until the age of five or six. Even today,” continued Watt, “their child will sometimes refer to Sutton, the biological mom, as Kimberly and not as ‘mom.'” Ramey was an active parent, serving as a home room mother at their son’s school, volunteering for school activities, and “built family traditions incorporating their child’s love of the outdoors.” The women held themselves out as a family to friends and relatives, took vacations as a family, and Ramey claimed their son as a “dependent” on her tax return. Even after the women ended their relationship, they continued living together as roommates for many months while continuing to raise the child together.
However, after Ramey moved out, Sutton opposed her attempt to maintain parental ties through a legal proceeding seeking custody and visitation rights. Sutton argued that since they had no written parenting agreement and Ramey had no legal relationship to the child, she lacked standing to seek a court order. The district court agreed with Sutton, dismissing the case for lack of a written parenting agreement, and Ramey appealed.
The court framed the questions presented on the appeal as follows: “(1) Whether the district court erred finding that a non-biological parent lacked standing because the same sex couple had not married and had no written parenting agreement; (2) Whether a biological mother has the right as a parent to legally erase an almost ten year parental relationship that she voluntarily created and fostered with her same sex partner.” The court answered the first question “yes” and the second question “no.” The court characterized this case as “a matter of first impression before this court,” noting that in 2014, in the case of Eldredge v. Taylor, 339 P.3d 888, it had upheld the right of a non-biological mother to enforce the terms of a written co-parenting agreement with her former same-sex partner. The district court’s dismissal of Ramey’s case was thus based on a narrow reading of the Eldredge case to require such a written agreement in order to confer standing on a same-sex co-parent.
Justifying a broader reading of Eldredge, the court relied on the Obergefell and Bishop cases. “Today we broaden Eldredge, acknowledging the rights of a non-biological parent in a same sex relationship who has acted in loco parentis where the couple, prior to Bishop or Obergefell, (1) were unable to marry legally; (2) engaged in intentional family planning to have a child and to co-parent; and (3) the biological parent acquiesced and encouraged the same sex partner’s parental role following the birth of the child.”
Thus, the ruling is really a transitional one, effectively applying the constitutional rulings of Bishop and Obergefell retroactively to benefit couples who had children at a time when they were being denied the constitutional right to marry or to have out-of-state same-sex marriages recognized in Oklahoma. The ruling presumably would not apply to same-sex couples who do not take advantage of the right to marry and have their marriage recognized in Oklahoma, which became effective shortly after the Supreme Court denied review in Bishop on October 6, 2014, before having children together. Presumably, same-sex couples who do not marry before having a child may still benefit from the Eldredge decision by executing a written co-parenting agreement. For those who had children prior to October 6, 2014, or perhaps prior to the Obergefell ruling on June 26, 2015 (the court is not explicit about this), Oklahoma courts will be required to set aside the lack of marital status or of a written parenting agreement, and will instead apply the 3-part test set out in this new ruling.
A finding of co-parent standing will not be automatic, of course, as the application of “in loco parentis” requires the court to find that the parties had planned to have a child together and then held themselves out as a family while raising the child together for some period of time before ending their relationship. The doctrine rests on a finding that the biological parent had intended her partner to be a co-parent to the child and voluntarily nurtured that parent-child relationship.
The court pointed out that this new case only applies to the issue of standing. Once a trial court determines that a same-sex co-parent has standing to seek custody or visitation, it will then turn to the issue of what is in the best interest of the child, just as it would in a custody and visitation dispute involving divorcing different-sex couples. To drive home this point, three judges joined a separate opinion, concurring in the result, stating: “In child custody cases the Court must determine standing first based on an agreement of the parties. Then and only then is best interest considered to determine custody and visitation.” This refers to the second part of Justice Watt’s 3-part test: intentional family planning to have a child and to co-parent.
The court’s decision is not without precedent in other jurisdictions, where courts have used various equitable doctrines including in “loco parentis” and “equitable estoppel” to establish standing for a same-sex co-parent to seek continued contact with the child he or she was helping to raise. But some states, including New York, have refused to embrace this equitable route. The New York courts still adhere to the now-anachronistic 1991 New York Court of Appeals ruling, Alison D. v. Virginia M., which treated co-parents as “legal strangers” to the child who have no right to seek custody or visitation, although a few lower courts confronted with the realities of family diversity have sought ways to get around that precedent. Thus we now have the anomalous situation that the Oklahoma Supreme Court is more progressive on gay family law than the New York Court of Appeals!
Brady R. Henderson of the ACLU of Oklahoma Foundation and Oklahoma City attorney Rhonda G. Telford Naidu represented Ramey on this appeal. Sutton was represented by Oklahoma City attorney Kacey L. Huckabee.Tags: Charlene Ramey, Eldredge v. Taylor, gay custody and visitation, Justice Joseph Watt, Kimberly Sutton, lesbian co-parent standing, Obergefell v. Hodges, Oklahoma Supreme Court, Ramey v. Sutton, retroactive effect of Obergefell v. Hodges, same-sex co-parent standing