Carvin: Expansion of Parental Rights Grounded in Equity, Child's Best Interest
By Gene Barton The headlines could not be missed. "Court redefines parenthood," The Seattle Times told us across the top of the front page of its November 4 issue.
But in reading through some 50 inches of copy trying to find out why the Washington Supreme Court had granted parental rights to a lesbian who had helped raise her partner's daughter, we were given only two sentences from Justice Bobbe Bridge's majority opinion. Otherwise, the story was devoted to the immediate controversy this monumental decision engendered.
So, what were the legal underpinnings of Justice Bridge's words? When one reads the 13-page opinion in In re the Parentage of L.B., Carvin v. Britain1 (the version downloaded from the court's web site, sans seven pages of elucidating footnotes, which should be consulted for nuance), the basis for the 7-2 ruling lies in equity and the best interests of the child.2
Sue Ellen "Mian" Carvin and Page Britain became romantically involved in June 1989 and co-habitated from September 1989 until February 2001. In May 1995, Britain gave birth to a girl - the result of the couple's joint decision to have Britain artificially inseminated. Carvin assisted in the insemination, accompanied Britain to prenatal appointments, participated in birthing classes and assisted in the delivery.
The girl was named for members of both Carvin's and Britain's families. In the girl's baby book, Britain listed herself as "mother" and altered "father" so that Carvin also would be listed as "mother." As Justice Bridge wrote, both women actively co-parented the little girl, "taking a committed, active, and loving role in her nurturing and upbringing." Unfortunately, the couple's relationship later dissolved in acrimony and, after Britain acted to limit Carvin's contact with L.B., litigation over visitation rights ensued.
A family court commissioner denied Carvin's petition and King County Superior Court Judge Michael Trickey "reluctantly" affirmed the ruling. The Court of Appeals reversed, finding that - as Justice Bridge wrote - "the legislature's omission of any language addressing the legal rights of parties to familial relationships such as the one presented here does not imply the complete denial of remedy but rather leaves the matter to be resolved by common law."3
In beginning her analysis, Justice Bridge wrote, "in the field of familial relations, factual scenarios arise, which even after a strict statutory analysis remain unresolved, leaving deserving parties without any appropriate remedy, often where demonstrated public policy is in favor of redress."4 She then framed the issue before the court:
Whether our state's common law recognizes de facto parents and, if so, what rights and obligations accompany such recognition. Specifically, we are asked to discern whether, in the absence of a statutory remedy, the equitable power of our courts in domestic matters permits a remedy outside of the statutory scheme, or conversely, whether our state's relevant statutes provide the exclusive means of obtaining parental rights and responsibilities.
The opinion cites four cases recognizing common law parentage: two recognizing "psychological" parenthood5 and two Court of Appeals cases that went a step further and afforded, in effect, "de facto" parent status.6 The latter cases, the court said:
Support the proposition that Washington common law recognizes the significance of parent-child relationships that may otherwise lack statutory recognition. In addition, both cases make clear that individuals may comprise a legally cognizable family through means other than biological or adoptive.
Turning to the "legislative pronouncements on parentage," the court found the "interstices that legislative enactments do not cover," particularly when it comes to the interests of the child. "Our legislature," Justice Bridge wrote, "has been conspicuously silent when it comes to the rights of children like L.B., who are born into nontraditional families, including any interests they may have in maintaining their relationships with the members of the family unit in which they are raised."
Looking first to the Uniform Parentage Act, the court noted that under the UPA "questions of parentage are to be considered without differentiation on the basis of marital status or gender of the child's parent"7 and "at least in the case of artificial insemination, the intent of the parties is the principal inquiry in determining legal parentage."8 Though "not directly controlling," the court found that these provisions "inform our decision making regarding recognition of a common law right to de facto parentage."
Exploring analogous custody and visitation cases, the court repeated the "principle that the welfare of the child is the paramount consideration," noted the legislative goal "to lessen the emotional and psychological trauma experienced by children whose parents separate" and recognized "a system that encourage(s) each parent to maintain a loving, stable, and nurturing relationship with the child.'"9
The court then turned to cases from 11 other states in recognizing common law de facto parentage in Washington.10 Of particular note was the court's reference to a Massachusetts case, E.N.O. v. L.M.M.,11 "with facts substantially identical to those present here." The court found E.N.O. and the other cases to "provide a well reasoned and just template for the recognition of de facto parent status in Washington." To do otherwise, the court said:
...would be antagonistic to the clear legislative intent that permeates this field of law - to effectuate the best interests of the child in the face of differing notions of family and to provide certain and needed economical and psychological support and nurturing to the children of our state.
The court held that Carvin has "standing to prove she is a de facto parent and if so determined, to petition for the corresponding rights and obligations of parenthood." To that end, the court adopted the four-part test set forth in the Court of Appeals decision, which, in turn, had been taken from the Wisconsin Supreme Court's ruling in H.S.H.-K:
To establish standing as a de facto parent . . . [the court must find that]: (1) the natural or legal parent consented to and fostered the parent-like relationship, (2) the petitioner and the child lived together in the same household, (3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.
Borrowing further from a Maine case,12 the court added that "recognition of a de facto parent is Ôlimited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life.'"
The court concluded:
[A] de facto parent stands in legal parity with an otherwise legal parent, whether biological, adoptive, or otherwise. As such, recognition of a person as a child's de facto parent necessarily "authorizes [a] court to consider an award of parental rights and responsibilities . . . based on its determination of the best interest of the child."13 A de facto parent is not entitled to any parental privileges, as a matter of right, but only as is determined to be in the best interests of the child at the center of any such dispute.
Gene Barton is the editor of the Bar Bulletin. He is a shareholder with Karr Tuttle Campbell in Seattle, practicing in commercial litigation and appellate law. He can be reached at 206-224-8030 or gbarton@karrtuttle.com. 1 No. 75626-1, en banc, filed November 3, 2005.
2 It also was not reported that, while the court ruled that Carvin has standing under the common law - but not the Uniform Parentage Act (RCW ch. 26.26) - to petition the courts for a determination of co-parentage (which sends Carvin back to King County Superior Court), the court also held that Carvin does not have standing to seek visitation rights under RCW ¤ 26.10.160(3). The Supreme Court reversed the Court of Appeals on this issue based on its holding in In re Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998), that Washington's third-party visitation statutes are unconstitutional and, thus, inoperative. This article otherwise discusses only that portion of the court's opinion addressing Carvin's common law parentage rights.
3 Citing In re Parentage of L.B., 121 Wn. App. 460, 475Ð76, 89 P.3d 271 (2004).
4 Citing Kaur v. Chawla, 11 Wn. App. 362, 364, 522 P.2d 1198 (1974) (holding statutory filiation procedures fail to address factual scenario and recognizing illegitimate child has common law right to support from his or her putative father).
5 "Washington courts have long recognized that individuals not biologically nor legally related to the children whom they Ôparent' may nevertheless be considered a child's Ôpsychological parent.'" Citing In re Welfare of Aschauer, 93 Wn.2d 689, 697 n.5, 611 P.2d 1245 (1980); In re Custody of Dombrowski, 41 Wn. App. 753, 756Ð57, 705 P.2d 1218 (1985) (describing apparent father, whose presumption of paternity was rebutted by blood test, as, nevertheless, "the only father (the child) has ever known").
6 In re Marriage of Allen, 28 Wn. App. 637, 639, 626 P.2d 16 (1981) (noting that "unique circumstances may warrant unique custody decrees" and affirming custody decree in favor of a deaf child's stepmother over the objection of the child's biological father); In re Custody of Stell, 56 Wn. App. 356, 369Ð71, 783 P.2d 615 (1989) (reversing in favor of aunt trial court's award of permanent custody to child's father).
7 Citing RCW ¤ 26.26.106 (prohibiting discrimination on basis of marital status and ensuring equivalent rights of children born outside the context of wedlock to those born within it); RCW ¤ 26.26.051 ("provisions relating to determination of paternity may be applied to a determination of maternity").
8 Citing, generally, RCW ¤¤ 26.26.700Ð.740 (emphasizing spousal consent).
9 Quoting In re Application of Day, 189 Wash. 368, 382, 65 P.2d 1049 (1937); RCW ¤ 26.09.187(3)(a).
10 See, e.g., In re Custody of H.S.H.-K., 193 Wis. 2d 649, 664, 533 N.W.2d 419 (1995) (overcoming statutory provisions to find, in equity, that court has "equitable power to hear a visitation petition if it finds that the nonparent has a Ôparent-like relationship with the child' and that Ôa significant triggering event justifies state intervention'").
11 429 Mass. 824, 827Ð32, 711 N.E.2d 886 (Mass.), cert. denied, 528 U.S. 1005 (1999) (holding that "Ôequity jurisdiction' of the probate and family court governed resolution of the issue in spite of a lack of statutory authority" and concluding "that Ôthe best interests of the child require. . . the child's de facto parent[ ] be allowed . . . visitation with the child'").
12 C.E.W. v. D.E.W., 845 A.2d 1146, 1152 (Me. 2004).
13 Quoting C.E.W., 845 A.2d at 1152; citing RCW ¤ 26.09.002.
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