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Oklahoma Supreme Court Uses “In Loco Parentis” Doctrine to Find Co-Parent Standing for Lesbian Mom

Posted on: November 18th, 2015 by Art Leonard No Comments

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.

Lesbian Co-Parent Has Standing to Enforce Co-Parenting Agreement in Oklahoma

Posted on: November 14th, 2014 by Art Leonard 1 Comment

Oklahoma now has same-sex marriage, courtesy of the federal courts, so perhaps the Oklahoma Supreme Court’s historic ruling on November 12 in Eldredge v. Taylor, 2014 OK 92, will have only transient significance, but it is nonetheless noteworthy, if only because of the court’s somewhat unusual ruling that a written co-parenting agreement between cohabiting partners can give a non-biological parent standing to seek a declaration of her parental rights after her relationship with the birth mother has ended.

The parties, Julie Eldredge and Karen Taylor, “committed to and lived together in a family relationship from May 19, 2001, until April 2011,” according to the opinion for the unanimous court by Justice Steven Taylor.  They contracted a civil union in New Zealand in 2005, and had two children together through donor insemination.  Taylor is the biological mother of the children, who were born in Oklahoma in 2007 and 2008.  Following the birth of each child, the women made written co-parenting agreements, which provide that both have parental rights and share parental responsibilities.  “Eldredge played the role of caregiver, assuming responsibility for the children’s care, education and development,” wrote Justice Taylor,” and she “publicly acknowledged the children as hers.  Taylor held out Eldredge as the children’s mother to family members, government personnel, and the children.  Taylor also held out Eldredge’s family as the children’s family.  The children formed a parental relationship with Eldredge and formed an emotional attachment to her and her family.”  Eldredge made a will that “disinherited her family and benefitted the children.”

However, the women separated in 2011, briefly reconciled, but then separated again and went back to New Zealand to dissolve their civil union in 2013.  They continued to share parenting responsibilities, however, and Eldredge paid child support to Taylor, who as the biological mother retained custody of the children.  However, on January 15, 2014, “Taylor removed the children from Eldredge’s care and made plans to remove them from Oklahoma,” so Eldredge went to court, seeking to enforce her rights under the co-parenting agreements.  Most importantly, she wanted a declaration of her parental rights, an award of custody, and an order blocking Taylor from taking the children out of the United States.  Presumably Taylor was planning to take them with her back to New Zealand.

Taylor filed a motion to dismiss the case, arguing that Eldredge lacked standing to seek these remedies because she was not a legal parent of the children.  At the time, of course, Oklahoma banned same-sex marriage and would not accord any legal significance to the parties’ civil union that was in effect when the children were born.  Furthermore, Taylor argued, enforcement of the co-parenting agreement should be barred due to Oklahoma’s public policy against same-sex marriage.  In addition, of course, many courts have held that the judicial doctrine of “best interest of the child” takes priority over any private agreements concerning custody or visitation.

The trial judge granted Taylor’s motion, agreeing that Eldredge lacked standing to bring this case, and Eldredge appealed, winning a unanimous reversal from the Oklahoma Supreme Court.

The court found that there was no express policy of Oklahoma law that would be violated by enforcing the co-parenting agreements, taking into account Eldredge’s concession that she was not seeking to have the agreements preempt a court’s determination whether it was in the best interest of the children for her to have parental rights.

“As the party seeking to void a contract,” wrote Justice Taylor, “Taylor bears the burden of proving that the Agreements violate public policy.  Taylor’s reliance on the Oklahoma Constitution’s ban on same-sex marriage is misplaced.  The United States Court of Appeals for the Tenth Circuit recently struck down as unconstitutional Article 2, Section 35’s ban on same-sex marriage.  When the United States Supreme Court denied the petition for a writ of certiorari, the Tenth Circuit opinion became final and enforceable.  We will not find a statement of public policy within an unconstitutional provision, either statutory or constitutional.”

The court also discounted Taylor’s reliance on the state’s adoption code, finding that Taylor had failed to “point to any place in the Adoption Code which bans adoption by a person of the same gender as a sole biological parent, and we find no such public policy in the Adoption Code.”  The court also found no such public policy in the state’s laws governing parentage and donor insemination.  The court pointed out that recent amendments to the Adoption Code actually allow second-parent adoptions by same-sex partners of biological parents.  Under the circumstances, enforcing the co-parenting agreements would not violate any clear public policy of the state.

“We find only one area where the Agreements’ specific provisions may be void as against public policy,” wrote Justice Taylor.  “That is if they contravene the best interests of the children.  Oklahoma has a strong public policy that custody and care of children should be based on their best interests.  Thus, any scrutiny of the Agreements must be based on whether the provisions are in the best interests of the children.”  However, at the stage of a motion to dismiss on standing grounds, this would not be an issue.

The court rejected Taylor’s argument that this case was governed by the Supreme Court’s 2000 decision, Troxel v. Granville, 530 U.S. 57, which overturned a state law under which grandparents sought visitation rights with their deceased son’s children over the objections of the son’s widow.  In that case, the Supreme Court strongly emphasized the constitutional right of a parent to make decisions about their children’s custody and upbringing.  The state law challenged in that case allowed anybody who might have an interest in the children to seek custody or visitation, and did not require the court to afford any special consideration to the objections of a legal parent.  This case is different, insisted the court, pointing out that the women planned jointly to have and raise these children in the context of their civil union, and Taylor encouraged Eldredge to form a parental bond with them, holding her out as a parent and accepting her support as a parent “even after they separated.”  The court found that “these special factors justify state interference into Taylor’s decision to withdraw all of Eldredge’s contact with the children.”

The court emphasized, however, that in sending the case back to the trial court it was determining only that Eldredge had standing to bring this lawsuit.  The burden will be on Eldredge to show that it is in the best interest of the children for the court to intervene and enforce the co-parenting agreements.  “The unique and compelling facts of this case make it difficult to create a general rule,” wrote Justice Taylor, stating that the decision “is limited to the facts before us and should not be read to extend rights to step-parents, grandparents, or others.”  He concluded, “The public policy of this State mandates that the district court consider the best interests of the children before they lose one of the only two parents they have ever known.  Thus, we find that the district court erred in granting the motion to dismiss.”

Eldredge is represented by Melody Huckaby Rowlett of Oklahoma City.  Taylor is represented by Candee R. Wilson and Cathy C. Barnum of Norman, Oklahoma.