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Mass. SJC Rules Affirmatively on Same-Sex Partner Parentage Claim in Partanen v. Gallagher

Posted on: October 5th, 2016 by Art Leonard No Comments

The Massachusetts Supreme Judicial Court (SJC) ruled on October 4 that the former same-sex partner of a woman who gave birth to two children through donor insemination during the women’s relationship can seek to establish full legal parentage of the children under the state’s statute concerning parentage of children born out of wedlock. Partanen v. Gallagher, SJC-12018, 2016 Mass. LEXIS 759, 2016 WL 5721061.

Although the state’s courts have in the past recognized various rights for co-parents in similar cases using a “de facto parent” concept, this unanimous ruling is the SJC’s first to take advantage of a law providing that “words of one gender may be construed to include the other gender and the neuter” to adapt a statute that was originally intended to allow unmarried men to establish their paternity of children born “out of wedlock” to their women companions, and to repurpose the statute as a vehicle to establish parental rights for unmarried same-sex partners.

Justice Barbara Lenk wrote for the unanimous seven-member court.

Karen Partanen and Julie Gallagher began their “committed relationship” as a couple in Massachusetts in 2001. The next year they moved to Florida, where they bought a house together in 2003.  In 2005 they decided to use donor insemination to have children.  The plan was for each of the women in turn to be inseminated.  Partanen’s attempt in 2005 was unsuccessful, but Gallagher’s subsequent attempt was successful and she gave birth to their daughter in 2007.  Gallagher was inseminated again in 2011, giving birth to a son.

These procedures were performed with the full cooperation and involvement of Partanen, who was present at the birth of the children. Partanen did not adopt the children, although in 2010 a Florida appeals court struck down the state’s statutory ban on gay people adopting children, but, according to her complaint in this lawsuit, she was fully involved as a parent, including personal contact, financial support, and decision-making.

After their son was born, the family moved back to Massachusetts. Although by then same-sex marriage was legal in Massachusetts, they did not marry. Shortly after the move, they ended their relationship and Partanen moved out.  She filed an action to establish “de facto” parentage in February 2014, requesting visitation and shared custody.  In September 2015, a Family Court judge ruled that she was a “de facto” parent, ordered visitation, and required her to pay child support to Gallagher.  An appeal of that ruling is pending.  Meanwhile, however, in October 2014 Partanen filed a separate action “to establish [full legal] parentage,” which Gallagher moved to dismiss, arguing that “full parentage” could only be achieved under the paternity statute by a biological parent.  Probate and Family Court Judge Jeffrey A. Abber granted Gallagher’s motion to dismiss the parentage case.

If one reads the relevant statute without taking into account the state’s general statutory directive on gender neutrality in interpretation, one could easily see the basis for Judge Abber’s ruling. The provision falls within the chapter of the state’s laws titled “Children Born Out of Wedlock,” Chapter 209C.  The statute extends to “children who are born to parents who are not married to each other.”  The various sections refer to “paternity” and authorize the courts to determine whether somebody is a child’s legal father. The statute recognizes a “presumption of paternity” in various situations.  The one most relevant here is that “a man is presumed to be the father of a child” that is born out of wedlock if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”

Gallagher argued, and the trial judge agreed, that this statutory scheme was not intended to provide a vehicle for somebody to establish legal parental rights over a child to whom the party was not biologically related. The SJC disagreed, pointing out that the statute does not state anywhere that the person seeking to establish parental rights has to be biologically related to the child.  “While the provisions at issue speak in gendered terms,” wrote Justice Lenk, “they may be read in a gender-neutral manner, to apply where a child is ‘born to [two people],’” not just a man and a woman, and the child “is received into their joint home, and is held out by both as their own child.”  Consequently, she wrote, “The plain language of the provision, then, may be construed to apply to children born to same-sex couples, even though at least one member of the couple may well lack biological ties to the children.”

Furthermore, such an interpretation was in accord with the overall purpose of the statute, which, as “laid out in its first sentence, is to provide all ‘children born to parents who are not married to each other’ . . . the same rights and protection of the law as all other children.”

The court strengthened its interpretation with a telling analogy to the use of reproductive technology by different-sex couples. Clearly, a cohabiting but unmarried man and woman who resort to donor insemination to conceive a child because the man is infertile could make use of this statute to establish the man’s paternity without any express requirement in the statute that he prove a biological relationship to the child.  That is, in fact, one of the normal uses of the statute.  If the legislature intended to make sure that all children born to unmarried parents have the same rights, shouldn’t children born to unmarried same-sex couples have the same rights as well?

“Here, had [the children] been born to a married couple using artificial reproductive technology, they would have had two parents to provide them with financial and emotional support,” wrote Justice Lenk. “We decline to read into the statute a provision that leaves children born to unmarried couples, using the same technology, with only one parent.”

Furthermore, she pointed out that the court had in the past recognized an interpretation of another provision that also would “recognize parentage in the absence of a biological relationship,” a provision under which parentage may be established through a “written voluntary acknowledgment of parentage executed jointly by the putative father and the mother of the child.” The court held years ago that such an acknowledgment does not require that the putative father have any genetic relationship to the child.  Under this ruling, same-sex couples can avail themselves of the same provision.  This only works, of course, if both parents are willing to sign such a document.

Gallagher argued that because Partanen lacks a biological connection to the children, they were not “born to” her, and thus do not fall within the scope of the statute. She bolstered this argument by referring to a provision authorizing the family court to order genetic testing of the putative father on a “proper showing” by the moving party.  That provision was clearly intended to allow single mothers seeking child support from the biological fathers of their children to prove genetic paternity in order to subject the men to their parental support duty.  “Where, as here, the parentage claim is not based on a genetic relationship,” wrote Justice Lentz, “Gallagher, as a moving party, cannot show such testing would be relevant to the claim at issue, and therefore, no ‘proper showing’ is possible.”

Ultimately, the court concluded that the facts alleged by Partanen in her complaint should have been sufficient to withstand Gallagher’s motion to dismiss the claim, and if upon remand the trial court finds the factual allegations to be true, Partanen will enjoy the presumption of parentage authorized by the statute and can seek visitation and custody on the same basis as any other person who is presumed to be a parent. If the Family Court judge finds it to be in the best interest of the children, Partanen would be awarded the same custody and visitation rights that any legal parent could seek after parents have ended their relationship with each other.

Although Massachusetts courts had previously recognized the ability of same-sex partners to seek “de facto” parental status, which accorded some rights, the court emphasized that full legal parentage involves the same rights that a biological or legal adoptive parent would enjoy.

The court did not rule on alternative constitutional claims raised by Partanen, resting its decision entirely on construction of the Massachusetts statutes. The court’s opinion does not mention any attempt by Gallagher to argue that treating Partanen as a presumptive parent would violate Gallagher’s constitutional due process rights as a “natural parent,” so it is unlikely that she would be able to seek U.S. Supreme Court review of this decision.

Mary Bonauto, the Civil Rights Project Director at GLAD: Legal Advocates & Defenders, the Boston-based New England GLBT rights public interest law firm, represents Partanen with co-counsel Elizabeth A. Roberts, Teresa Harkins La Vita, Patience Crozier and Joyce Kauffman. Bonauto gave the oral argument in the U.S. Supreme Court in 2015 that led to nationwide marriage equality in Obergefell v. Hodges, and she also argued to the Massachusetts SJC in 2003, resulting in the nation’s first affirmative marriage equality ruling by a state’s highest court.

Jennifer M. Lamanna represents Gallagher. The SJC received amicus briefs, all in support of Partanen’s appeal, from: C. Thomas Brown for Greater Boston Legal Services; Emily R. Shulman, Brook Hopkins, and Adam M. Cambier for the American Academy of Assisted Reproductive Technology Attorneys; Abigail Taylor, Gail Garinger, Brittany Williams and Andrea C. Kramer for the Massachusetts Attorney General’s Office; and Shannon Minter, Marco J. Quina, and Emma S. Winer for a group of law professors specializing in family law issues.  The case seems to have flown below the radar of groups that usually file opposition amicus briefs in such cases.

N.Y. Appellate Division Approves Comity for California Parentage Rights of Lesbian Co-Parent

Posted on: April 11th, 2016 by Art Leonard No Comments

The New York Appellate Division, Second Department, an intermediate appellate court based in Brooklyn, issued a unanimous ruling on April 6 affirming a decision by Suffolk County Family Court Judge Deborah Poulos recognizing the parental status of a lesbian co-parent, now resident in Arizona, who is seeking visitation with two children who were conceived through donor insemination while she was legally partnered with their birth mother, first as a California domestic partner and then as a California spouse.  The birth mother and children live in Suffolk County.  The case is Matter of Kelly S. v. Farah M., 2016 N.Y. App. Div. LEXIS 2533, 2016 N.Y. Slip Op 02656.

The lead sentence above is complicated, but not more so than the decision by Justice Sheri S. Roman, which methodically works its way through several complex issues to arrive at a total affirmance of Judge Poulos’s decision from March 2015, which not only upheld the co-parent’s standing to seek visitation but also rejected the birth mother’s attempt to institute a paternity action against the sperm donor for both children. Justice Roman’s opinion refers to the parties as Kelly S. and Farah M., but an article about the decision published in Newsday on April 9 identifies them as Kelly Steagall and Farah Martin.

According to the decision, Kelly and Farah began their relationship around March 2000 and became registered domestic partners in California in January 2004. Shortly afterwards they asked a close friend, Andrew S., to donate sperm so they could have a child together.  Kelly became pregnant and bore their first child, whom Farah legally adopted.  That child is not a subject of this lawsuit.

Kelly and Farah decided to have another child, and Andrew again donated sperm. This time Farah became pregnant, giving birth in March 2007 to Z.S.  Kelly was listed as a parent on the birth certificate and the child’s legal surname is Steagall.

After the California Supreme Court ruled for marriage equality in 2008, Kelly and Farah decided to get married, which they did that August. A few months later the voters approved Proposition 8, ending new same-sex marriages in California until it was declared unconstitutional several years later.  In the meantime, however, the California Supreme Court ruled in 2009 that same-sex marriages performed prior to the passage of Prop 8 remained valid.  Kelly and Farah decided to have a third child and Andrew again donated sperm so that Farah could become pregnant.  Their third child, E.S., was born in April 2009.  Kelly was again listed on the birth certificate as a parent, and E.S. received Kelly’s surname.

In 2012 the family relocated to New York State, but Kelly and Farah soon split up and Kelly moved to Arizona in the summer of 2013. The children remained in New York with Farah.  As diplomatic relations between the women were poor, Kelly filed a visitation petition in the Suffolk County Family Court, seeking visitation with Z.S. and E.S.  She alleged that the women were legally married in California and Kelly was a legal parent of the two children, whom she had helped to raise until the parties split up.

Farah moved to dismiss the case, arguing that Kelly lacked standing under New York law to seek visitation, invoking the old New York precedent of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), under which same-sex co-parents were deemed to be “legal strangers” to their children. She also sought to drag Andrew into the case as the children’s biological father by filing a paternity petition.  Although Andrew had never sought to establish his paternity, he was a close friend of the women and had formed a loving relationship with the children and they with him.  Farah evidently hoped that if the court declared Andrew their legal father, that would cut off Kelly’s claim, because New York does not recognize that a child can have more than two legal parents at the same time.

Farah argued in opposition to Kelley’s standing that Z.S. was born before the women were married, and that Kelly should not be deemed their parent because the insemination did not follow the prescribed route under either California or New York donor insemination statutes, which specify the involvement of a doctor in performing the insemination and a written consent from the birth mother’s spouse in order to raise a presumption of parental status for the spouse. Both of these children were conceived through insemination at home without the aid of a physician.

LGBT family law has advanced so significantly in both California and New York since the turn of the century that Farah’s arguments clearly lacked merit. Same-sex marriage is legal in both states, and New York’s Marriage Equality Law, enacted in 2011, makes clear that same-sex and different-sex marriages are to be treated the same, a point driven home as a matter of constitutional rights by the U.S. Supreme Court’s 2015 Obergefell decision.

New York courts have several times used the doctrine of “comity” to rule that somebody who is a parent of a child under the law of another state will be recognized as their parent in New York, despite the precedent of the Alison D. case. Under California law, when a registered domestic partner gives birth to a child her partner is presumed to be a legal parent of the child and, of course, when a married woman gives birth to a child in California, her legal spouse is presumptively the child’s parent.  The family court found that both of these presumptions applied in this case, and the Appellate Division agreed.

The court rejected Farah’s argument that failure to comply with the statutory donor insemination procedures of the two states would bar Kelly from parental status, pointing out that court decisions in both California and New York establish that the donor insemination statutes are not the exclusive way to create parental rights. These laws provide that partners of birth mothers who comply with the statutory requirements will obtain parental status, but don’t explicitly provide that failure to comply will forfeit any claim to parental status. The general rule for recognition of parental status in New York for a child born in a sister state is comity unless there is a strong public policy reason for New York to refuse to recognize the status.  California law clearly provides that a child born to a woman who has a registered domestic partner is also the child of the partner, and similarly, of course, that a child born to a married woman is the child of her spouse, and New York courts have extended comity in such situations in the past.  In this case, since Kelly was listed on both birth certificates and the children were given her surname, it is clear that the parties intended that she be a parent of both children when they were born.

The Appellate Division also upheld Judge Poulos’s decision to dismiss Farah’s paternity petition. Poulos determined that Farah filed the “in an attempt to terminate Kelly S.’s parental rights.”  But this would be inconsistent with the ultimate factual findings in the case.  Wrote Justice Roman, “The record reflects that the parties made an informed, mutual decision to conceive the subject children via artificial insemination and to raise them together, first while in a registered domestic partnership in California, and, later, while legally married in that state.  Additionally, the children were given Kelly S.’s surname, Kelly S. was named as a parent on each birth certificate, and the parties raised the children from the time of their births, in March 2007 and April 2009, respectively, until the parties separated in or around the summer of 2013.  Under the circumstances presented, the court properly determined that Farah M. may not rebut the presumption of parentage in favor of Kelly S. arising under California law by filing paternity petitions against the sperm donor and correctly determined that Kelly S. has standing to seek visitation with the subject children at a best interests hearing.”

Kelly Steagall’s appellate attorney is Christopher J. Chimeri of Hauppague, N.Y. Farah Martin is represented by Sari M. Friedman of Garden City.  Regina M. Stanton was appointed by the court to represent the interest of the children.  Friedman told Newsday that she doubted her client would appeal, but she criticized the decision as “not good law.”  Steagall told Newsday, “As unfortunate as the situation is, I’m happy that some good came out of my rough situation and could help families in the future.”

The New York Court of Appeals will hear oral argument on June 2, 2016, in Matter of Brooke S.B. v. Elizabeth A. C.C., an appeal challenging the continued validity of Alison D. v. Virginia M. The Court of Appeals gave leave to appeal a ruling by the Buffalo-based Appellate Division, 4th Department, Matter of Barone v. Chapman-Cleland, 129 A.D. 3d 1578, 10 N.Y.S.3d 380 (June 19, 2015), which had matter-of-factly applied the Alison D. precedent to hold that a lesbian co-parent lacked standing to seek custody and visitation with her son.  The Court of Appeals reaffirmed the holding of Alison D. as recently as 2010, in Debra H. v. Janice R., 14 N.Y.3d 576, but since then Democratic Governor Andrew Cuomo has appointed six new judges of the seven-member court, leaving only one appointee by former Republican Governor George Pataki on the bench, an almost complete turnover of membership since Alison D. was last affirmed, so it is highly possible that the court granted leave to appeal with a view to overruling the obsolete precedent.

Florida Supreme Court Rules 4-3 in Favor of Lesbian Co-Parent Egg Donor’s Right to Seek Custody

Posted on: November 7th, 2013 by Art Leonard No Comments

Ruling on a question of first impression for Florida, the state’s Supreme Court split 4-3, finding that a lesbian co-parent who had donated an egg that was fertilized in vitro and implanted in her same-sex partner, could seek custody of the resulting child whom she had parented for the first two years of the child’s life before the couple’s relationship ended.  The court approved a ruling by the 5th District Court of Appeal that a Florida statute that would by its terms block this result would be unconstitutional as applied to this situation, although the court disagreed with the 5th District’s conclusion that the statute didn’t even apply to the case because the co-parent did not intend to “give away” her egg as a “donor.”  The dissent argued that the constitutional issues were not properly before the court and that the co-parent had waived her rights by signing a form consent agreement at the time the in vitro insemination procedure was performed.

The case, D.M.T. v. T.M.H., 2013 Fla. LEXIS 2422, 2013 WL 5942278 (Nov. 7, 2013), achieved a fair degree of notoriety, as the birth mother absconded with the child to Australia and had to be tracked down by detectives in order to serve her with the co-parent’s complaint to initiate the lawsuit.

According to the opinion for the court by Justice Barbara J. Pariente, the parties were “involved in a committed relationship from 1995 until 2006,” living together, acquiring real estate together, and maintaining joint financial accounts.  They decided to have a baby, and after determining that D.M.T. could not produce an egg, they resorted to in vitro fertilization, using an egg harvested from T.M.H. to inseminate from a sperm donor, to be gestated by D.M.T.  They raised their daughter together for two years until the relationship broke down and they separated in May 2006, after which the child lived with D.M.T. under a time-sharing agreement with T.M.H.  After the relationship of the women deteriorated further, D.M.T. disappeared with the child, and was subsequently traced by detectives to Australia.

T.M.H., described by the court as “the biological mother,” filed a petition to establish her parental rights and seek custody.  D.M.T., described as “the birth mother,” moved for summary judgment, relying on a Florida statute that provides that an egg or sperm donor relinquishes all parental rights, “other than the commissioning couple or a father who has executed a preplanned adoption agreement.”  “Commissioning couple” is defined as the intended mother and father of a child.”  The trial court agreed with D.M.T. that the statute compelled granting her summary judgment, but commented, “I do not agree with the current state of the law, but I must uphold it. And, if you appeal this, I hope I’m wrong.”

T.M.H. appealed, and the 5th District Court of Appeal reversed, finding first that the statute did not even apply, because the court did not consider T.M.H. to be a “donor.”  Finding that the parties had intended to raise the child together, the court of appeal concluded that T.M.H. was not “giving away” her egg.  And, alternatively, if the statute were to apply, the court of appeal ruled that this would violate T.M.H.’s constitutional rights, as the biological and intended parent of the child.

This time D.M.T. appealed.  The Florida Supreme Court majority disagreed with the 5th District’s holding that T.M.H. was not a “donor,” but otherwise affirmed the court’s ruling on constitutional grounds.  The court found that the right to procreate is a “fundamental right” under the Florida and U.S. Constitutions.  “Therefore,” wrote Justice Pariente, “the burden falls on the birth mother to demonstrate that application of the assisted reproductive technology statute to deprive the biological mother of her fundamental right to be a parent furthers a compelling governmental interest through the least intrusive means.  This showing has not been made.”

The court recognized that the statute’s purpose was to protect “couples seeking to use assisted reproductive technology to conceive a child from parental rights claims brought by typical third-party providers of the genetic material used in assisted reproductive technology, as well as the State’s corresponding interest in furthering that objective.  This case, however, does not implicate those concerns.  Quite simply, based on the factual situation before us, we do not discern even a legitimate State interest in applying [the statute] to deny T.M.H. her right to be a parent to our daughter.”  The court emphasized that T.M.H.’s rights in this case did not turn solely on her status as a biological mother, but depended also on the parental role she assumed upon the birth of her daughter, thus distinguishing this from a case where an egg or sperm donor who does not form a relationship with a child suddenly surfaces years later trying to assert parental status.

The court also ruled on an alternative argument of equal protection.  “Sexual orientation has not been determined to constitute a protected class and therefore sexual orientation does not provide an independent basis for using heightened scrutiny to review State action that results in unequal treatment of homosexuals,” wrote Pariente,” explaining why the court would apply “a rational basis analysis” to T.M.H.’s equality claim.  “The specific question we confront is whether the classification between heterosexual and same-sex couples drawn by the [statute] bears some rational relationship to a legitimate state purpose.”  D.M.T. relied in part on the Florida Marriage Amendment, which forbids same-sex couples from marrying or having their marriage recognized, to support her argument against T.M.H.’s claim, but the court held that the amendment was irrelevant, since the “commissioning couple” definition in the statute did not require that the intended father and mother be married to each other, unlike a companion statute on gestational surrogacy which limited that procedure to use on behalf of married couples.  The court also rejected D.M.T.’s claim that “recognizing T.M.H.’s parental rights in this case would undermine the State interest in providing certainty to couples using assisted reproductive technology to become parents because it would increase litigation regarding the intentions of individuals providing genetic material.”  The court pointed out that the statute clearly contemplates litigation about whether an unmarried different-sex couple might be considered a “commissioning couple” under the statute, which would require a factual determination of intent.

“We conclude,” wrote Pariente, “that the State does not have a legitimate interest in precluding same-sex couples from being given the same opportunity as heterosexual couples to demonstrate that intent.  Consistent with equal protection, a same-sex couple must be afforded the equivalent chance as a heterosexual couple to establish their intentions in suing assisted reproductive technology to conceive a child.”  Additionally, the court noted a ruling by the 3rd District Court of Appeal in Adoption of X.X.G. which had declared unconstitutional the state’s statutory ban “against a homosexual adopting  child” as “lacking a rational basis,” mentioning with apparent agreement that court’s finding “that gay people and heterosexuals make equally good parents.”  Then-Governor Charlie Crist had decided not to appeal the X.X.G. decision and instead to comply with the court’s order, so the Supreme Court had never issued a definitive ruling on the constitutionality of the statute.  This pronouncement by a majority of the court appears to approve of that ruling, at least by implication.

The court rejected D.M.T.’s argument that the standard consent form that T.M.H. signed at the clinic for the in vitro procedure would serve to waive her rights, asserting that “courts that have considered similar standard informed consents used in reproductive technology have held that waiver provisions like the one referenced by the Fifth District are inapplicable in circumstances like those in this case.  This is because it is uncontested that the biological mother was not an anonymous donor, but rather, that the parties were in a committed relationship where reproductive technology was used – with one woman providing her egg and the other partner bearing the child – so that both women became the child’s parents. . .   Accordingly, the informed consent form signed by the biological mother has nothing to do with a release of parental rights where she was not an anonymous donor, but rather, was a full-fledged partner in the conception and raising of the child.”

Having determined that T.M.H. is a legal parent of the child, the Supreme Court sent the case back to the trial court “to determine, based on the best interests of the child, issues such as parental time-sharing and child support.”

The dissenting opinion, written by Chief Justice Ricky Polston, contested just about every point of the majority decision, arguing that the constitutional issues had not been asserted at the trial level and thus were not preserved for consideration on appeal, that D.M.T. contested T.M.H.’s allegation that the women had intended to raise the child together, and that the statute clearly applied to block T.M.H.’s claim.  The political line-up of the justices is interesting.  Of the four in the majority, two were appointed by Democratic Governor Lawton Chiles and two by Republican Governer Charlie Crist; of the three dissenters, one was appointed by Chiles and two by Crist.

Many amicus briefs were filed with court, mainly in support of T.M.H., including briefs from the ACLU LGBT Rights Project and the ACLU of Florida, Lambda Legal, and the National Center for Lesbian Rights.  Michael B. Jones of Orlando, Florida, represented T.M.H.   Christopher V. Carlyle and Shannon McLin Carlyle of The Villages, Florida, and Robert A. Segal of Melbourne, Florida, represented D.M.T.

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.