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Kentucky Supreme Court Lets Lesbian Co-Parent Block Adoption Petition by Former Partner’s Husband

Posted on: February 29th, 2016 by Art Leonard No Comments

The Kentucky Supreme Court unanimously ruled on February 18 in A.H. v. W.R.L. & M., 2016 Ky. LEXIS 14, that the lesbian co-parent of a child had a right to intervene in an adoption proceeding that had been initiated by the new husband of her former same-sex partner. Facing a case of “first impression” for the Kentucky courts, Justice Bill Cunningham wrote that the Kentucky Court of Appeals had incorrectly reversed the trial court’s decision to grant the co-parent’s motion to intervene and to dismiss the step-father’s adoption petition.

Justice Cunningham’s opinion refers to all the parties only by their first names in order to protect their privacy, as is common in family law proceedings.

Amy and Melissa began their relationship in Ohio in 2005 and decided to have a child together. Melissa conceived through donor insemination and gave birth to Laura in September 2006.  Amy was present throughout the delivery, and the women agreed that Laura would have Amy’s last name.  Until Melissa and Amy separated in 2011, they lived together with Laura as a family, Amy taking a full share of parental duties.

After the split-up, Melissa moved with Laura to Kentucky. Amy continued to visit Laura after the move.  The next year Melissa married a man named Wesley.  Almost two years later, in 2014, Wesley filed a step-parent adoption petition in the Kenton County, Kentucky, Family Court.  When Amy learned of this, she filed a Petition for Shared Custody and Visitation in Hamilton County, Ohio, Family Court, as well as a motion to intervene in the Kentucky adoption case.  She sought to have the adoption petition dismissed in light of her custody petition pending in Ohio.

The Ohio Family Court does not have jurisdiction over Laura, a resident of Kentucky, so the two cases were consolidated in Kentucky, where the trial judge granted Amy’s motion to intervene and dismissed Wesley’s adoption petition. In effect, the Kentucky trial judge decided to reorient the case away from Wesley’s adoption to Amy’s action for shared custody and visitation.

Wesley appealed and the Kentucky Court of Appeals reversed. It held that Amy did not have “standing” to seek to adopt Laura and thus was not entitled to intervene in Wesley’s adoption case, and it ordered the Family Court to reinstate the adoption proceeding.

This time Amy appealed.

Supreme Court Justice Cunningham prefaced his discussion of the legal issues with his assertion that the case “is not about same-sex relationships, changing social mores or notions about definition of family, or life styles.”

“This case is about people and their ability to participate in a lawsuit in which the outcome may adversely affect their interest,” he continued. “What we write here today applies equally to a myriad of human relationships including heterosexual parenting, boyfriends, girlfriends, grandparents, and others.  Most importantly, this case is about Laura.  Sometimes the emotions which envelope these types of cases cause this primary concern to be overlooked.”

At its heart, wrote Cunningham, was the Court of Appeals’ mistaken conflation of the concepts of intervention and standing. “Standing to seek adoption is not a condition for intervening in an adoption proceeding,” he wrote.  “Our analysis is concerned only with Amy’s right to intervene in the adoption proceeding.”

As to that, he found that a Kentucky practice rule on “intervention of right” in pending cases, Rule 24.01, applies to this situation. The rule states that “anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest.”  Indeed, if Wesley’s petition was granted, he and Melissa might have the power as Laura’s legal parents to exclude Amy from Laura’s life.

In this case, wrote Cunningham, “the subject of the adoption action is Laura, and Amy is claiming a cognizable legal interest – i.e., maintaining a relational connection with the child, either through custody or visitation.” Granting Wesley’s adoption petition “could impair or impede Amy’s proffered custodial interest since, absent her intervention, the adoption proceedings would have concluded before her custody rights were determined.”  On the other hand, if she gained joint custody before the adoption proceeding was concluded, she would “share the right to make decisions concerning the major aspects of Laura’s upbringing.”  Thus, the Supreme Court found that Amy had satisfied the requirements set forth in Rule 24.01.

Thus Amy was entitled to intervene as a matter of right. The court pointed out that another Rule governs permissive intervention, which would give the trial court discretion to allow her to intervene even if she did not have a strict right to do so.

When Melissa and Amy planned to have a child they executed a written agreement with their sperm donor which made clear that they contemplated that Amy and Melissa would raise the child together as parents. Justice Cunningham noted that the parties in this case have argued about whether that document is an enforceable contract.  He found that question not “dispositive” of the outcome of this case, but rather considered the document to be “instructive evidence demonstrating the intent of Amy and Melissa to raise Laura as co-parents,” thus bolstering Amy’s claim to have a legal interest for purposes of intervening in the adoption proceeding.

The Supreme Court also found that the trial judge made a “logical decision” that Amy’s custody claim should be resolved before addressing Wesley’s adoption petition, and that the Court of Appeals should have deferred to the trial court’s judgment on this as a matter of judicial efficiency. The Supreme Court sent the case back to the trial court, reinstating its order granting intervention and dismissing the step-parent adoption petition.

Amy is represented by attorneys Margo L. Grubbs, Jennifer Blain Landry, Camilla B. Taylor, Kyle A. Palazzolo, Christopher R. Clark, Gregory R. Nevins and Lisa T. Meeks. Taylor, Palazzolo, Clark and Nevins are staff attorneys with Lambda Legal.  Counsel for Wesley are Jacqueline S. Sawyers and Amy Howard Anderson.

New York Lesbian Co-Parent Custody Claim Precluded under 12-Year-Old Decision

Posted on: October 8th, 2013 by Art Leonard No Comments

The evil that courts do lives on…  On October 4, 2013, the New York Law Journal published Rockland County Family Court Referee Dean Richardson-Mendelson’s opinion in Matter of A.F. v. K.H., V-00918-13, rejecting all attempts by a lesbian co-parent to obtain judicial relief against her former partner’s action of excluding her from contact with the children they had been raising together.  The principal barrier to her case is the N.Y. Court of Appeal’s old decision, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), which held in similar circumstances that the co-parent was, despite her relationship parental relationship with a child since the child’s birth, a “legal stranger” who did not have standing under New York law to obtain a declaration of her parental rights, custody or visitation, and that the circumstances that the women had agreed to raise a child together did not amount to “special circumstances” required under New York law to enable a legally-unrelated third party to seek custody of a child.

In A.F. v. K.H., the parents had registered as domestic partners, but the court mentions this only in passing and does not specify the jurisdiction.  A.F. and K.H. were living together as a couple when they decided to have children, using anonymous donor insemination for K.H. to conceive two children.  They lived together raising the children until they separated in July 2011, but continued to live on different floors in the same house, facilitating continued contact between A.F. and the children, who lived with K.H.  In February 2012 K.H. moved out with the children to her mother’s house in New Jersey, but then relocated back to another town in New York State in August 2012.  A.F. continued to have visitation two days a week and alternate weekends, until a promotion at her job made weekday visitation impossible.

A.F. contributed to the support of the children financially.  In May 2012, K.H. had filed a petition in Rockland Family Court seeking formal child support from A.G.  In support of this claim, her petition was full of factual allegations seeking to persuade the court that A.F. was a parent of the children who should be held to this responsibility.  But in August, she withdrew the petition, and the Support Magistrate marked it as withdrawn.

Visitation by A.F. and financial support for the children continued until an “altercation during a visitation exchange” in April 2013, after which K.H. has not allowed further visitation, resulting in A.F. filing this petition.

Referee Richardson-Mendelson found that the Alison D. decision, never overruled or modified by the Court of Appeals and subsequently followed by all four departments of the Appellate Division, had to control this case in terms of A.F.’s legal claim under the Domestic Relations Law.  One who would be declared a “legal stranger” to the child in 1991 remains a legal stranger today, as far as that statute is concerned, because the legislature never heeded the court’s suggestion that it address the issue of non-traditional families.  Second-parent adoption is legal in New York, as is step-parent adoption, but these parties never took those steps and did not marry in 2011 when New York enacted marriage equality.

Any local domestic partnership registration would presumably not change this, since custody and visitation are matters of state law, which may explain why the court does not explicitly factor that into its analysis.

Failing on a legal claim under the custody statute, A.F. also advanced equitable arguments.  First, she contended that the court should use the doctrine of equitable estoppel to hold that K.H. could not legally deny A.F.’s parental status because she had, in fact, treated A.F. as a parent of the child for several years, fostering the relationship of A.F. with the children and allowing visitation to continue for almost two years after the women’s relationship had ended.  But the Court of Appeals had directly rejected such an argument in the Alison D. case, so the court found that A.F. was precluded from making it.

Finally, A.F. argued judicial estoppel, a doctrine that prevents a party from taking diametrically opposite positions in legal proceedings.  A.F. pointed out that K.H. had filed a support petition in which she alleged that A.F. was a parent of the children, but now was arguing that she was not a parent.  A.F. contended that K.H. should not be able to assert these opposite positions.  But the court rejected this argument as well, pointing out that K.H. had withdrawn her support position longer before A.F. filed the custody and visitation petition.  The court also pointed out that this doctrine normally applies when a party’s assertion of the first petition had resulted in a legal judgment in her favor, that judgment then providing the basis to block her from taking the opposite position in a later proceeding.  In this case, however, K.H. withdrew her petition before any finding on A.F.’s parental status had been made and before any support order had been issued.

Thus, it made no matter to the court that New York is now a marriage equality jurisdiction.  Marriage equality provides equal marital rights, but it does not change the legal position of unmarried partners toward each other or their children.  Unless the New York legislature changes the rules, the legal invisibility of unmarried same-sex couples raising children will continue.

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.