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.