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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.

Kansas Supreme Court Recognizes Right of Same-Sex Co-Parent to Enforce Parenting Agreement

Posted on: February 26th, 2013 by Art Leonard 1 Comment

The Kansas Supreme Court has unanimously ruled that a lesbian co-parent who entered into a written co-parenting agreement with her partner before her partner had a child through assisted reproductive technology (ART) can seek enforcement of the agreement in the Kansas courts, premised on a gender-neutral interpretation of the Kansas version of the Uniform Parentage Act.  Ruling in Frazier v. Goudschaal on February 22, the court also found that the trial court had authority to make a property distribution between the women.  However, the court also agreed that further fact-finding is necessary to determine the best interests of the child and an appropriate distribution of property before a final order in the case can be given.

Marci Frazier and Kelly Goudschall began their relationship in 1995.  They first planned to start a family with children by each becoming pregnant and bearing a child through ART, but because Frazier was unable to become pregnant they agreed that Goudschaal would bear two children, who were born in 2002 and 2004.  They signed a coparenting agreement before the first child was born, and another prior to the birth of the second child.  The agreements identified Frazier as a “de facto parent” whose “relationship with the children should be protected and promoted,” and that the parties intended “to jointly and equally share parental responsibility” including financial responsibility and joint determination of  “major decisions” affecting the children.  In the event that the women separated, the agreements provided that the mother with physical custody would “take all steps necessary to maximize the other’s visitation.”  They also executed consent for medical authorization and a durable power of attorney for health care decisions, and made wills naming each other as the children’s guardians.

They all lived together as a family unit for several years, but things started to break down and by September 2007 the women were occupying separate bedrooms.  Goudschaal moved out with the children in January 2008, and in July of that year began decreasing Frazier’s contact, limiting it to one day a week and alternate weekends.  In October 2008, Goudschaal informed Frazier that she was moving with the children to Texas to take a new job.  Frazier then filed suit in Johnson County (Kansas) District Court, seeking to enforce her rights under the co-parenting agreement and for a division of property.

The District Court found that it had jurisdiction, issuing an order dividing all of the women’s property equally, awarding joint legal custody of the children, designating Goudschaal as residential custodian, establishing unsupervised parenting time for Frazier, and ordering Frazier to pay child support.  Goudschaal appealed, asserting that the court had improperly allocated some of her personal property to Frazier and that the court lacked jurisdiction and authority to make a custody and parenting time award to an “unrelated third person.”

The court, following the lead of state supreme courts in California and New Mexico (see Elisa V. v. Superior Court, 37 Cal.4th 108 (2005) and Chatterjee v. King, 280 P.3d 283 (N.M. 2012)), ruled that the Kansas courts do have jurisdiction over all the issues raised in this case, but that the trial court needed to do more fact-finding concerning the best interest of the children.  The court also ruled that the trial court erred in the method it used for allocating property rights, so the case was remanded with directions to the trial court for more fact-finding.

The most significant part of the ruling is undoubtedly the court’s determination that the Kansas version of the Uniform Parentage Act does give the court jurisdiction in cases of this type to entertain an action by the non-adoptive second parent to enforce a pre-birth co-parenting agreement.  In some states, courts have held that any private pre-birth agreement concerning custody and visitation is not binding on the court on grounds of public policy, in light of the state’s parens patriae role as protector of the interests of the child.    Rejecting this approach, Justice Lee A. Johnson wrote that “the coparenting agreement before us is not rendered unenforceable as violating public policy merely because the biological mother agreed to share the custody of her children with another, so long as the intent, and effect, of the arrangement was to promote the welfare and best interests of the children.”  The court found that “the coparenting agreement designates Frazier as a ‘de facto’ parent,” and the Kansas statute “permits the creation of presumptive motherhood through written acknowledgment.”

The court rejected Goudschaal’s argument that this interpretation of the statute would violate her federal constitutional rights as the biological mother of the children.  She rested her argument primarily on Troxel v. Granville, 530 U.S. 57 (2000), in which the Supreme Court struck down a Washington state statute that allowed any person to petition the court for child visitation, even over the objection of a fit biological parent, grounding the parent’s right in the due process clause of the 14th amendment.   The right at issue is the fit parent’s right, as an aspect of liberty protected by the due process clause, to decide upon the “care, custody, and control of her children.” 

In this case, wrote Justice Johnson, Goudschaal had exercised that right “when she entered into the coparenting agreement with Frazier.  If a parent has a constitutional right to make the decisions regarding the care, custody, and control of his or her children, free of government interference,” he wrote, “then that parent should have the right to enter into a coparenting agreement to share custody with another without having the government interfere by nullifying that agreement, so long as it is in the best interests of the children.”  Thus, “parental preference” for custody, as specified in the statute, can be waived and, “as Frazier points out, the courts should not be required to assign to a mother any more rights than that mother has claimed for herself.”  Indeed, the court said that “the children were third-party beneficiaries of that contract,” and their interest in maintaining a relationship with both of their mothers was also an important factor in the case.  “Denying the children an opportunity to have two parents, the same as children of a traditional marriage, impinges upon the children’s constitutional rights,” wrote Johnson.  “Here, the agreement effects equality by giving the children two parents.  Moreover, the UPA and, in turn, the KPA are gender-neutral, so as to permit both parents to be of the same sex.”

However, the court found that the district court, which “was exploring new territory in this case,” had acted without sufficient evidence on the best interests of the children.  The court noted that there was no explanation in the record for evidence that “the children allegedly began experiencing problems after recommencement of visitation with Frazier.”  The court decided it was appropriate to send the case back for further exploration of this issue, and for the appointment of an attorney to represent the children’s interests in that proceeding.

Turning briefly to the property division issue, the lack of same-sex marriage in Kansas was salient.  The court decided that the trial judge’s “blanket finding that the parties intended to share everything” was inappropriate, directing that on remand “the court should conduct an asset-by-asset determination of whether each item was jointly accumulated by the parties or acquired by either with the intent that each should have an interest therein.”   Fact-finding remains to be done before a final property distribution can take place.

Dennis J. Stanchik of Olathe, Kansas, represents Frazier.  T. Bradley Manson of Manson & Karbank, Overland Park, argued the appeal for Goudschaal.  Amicus briefs, all in support of Frazier, were filed by a group of LGTB/civil liberties groups (ACLU, NCLR), the Washburn University Law School’s Children and Family Law Center, and the National Association of Social Workers.