Legal News Headlines

 
Copyright 2008 Dolan Media Newswires

 May 12, 2008

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A Durham County court properly granted custody rights to the former same-sex domestic partner of a child's biological mother because the mother had waived her constitutional right to exclusive custody, the Court of Appeals ruled May 6.

In a separate case issued on the same date, the panel reached an opposite result, affirming an Orange County court's denial of custody to a former partner upon finding that the biological mother had not ceded parental rights to her twins.

The two cases Mason v. Dwinnell and Estroff v. Chatterjee mark the first time that a state appellate court has ruled on a custody dispute between same-sex couples.

However, Judge Martha A. Geer, the author of both opinions, stressed that sexual orientation was "immaterial to the proper analysis of the legal issues involved. "

Instead, Geer said, the court simply applied the rule that has controlled custody disputes between a legal parent and a third party since the state Supreme Court's 1997 decision in Price v. Howard, 346 N.C. 68.

Price held that a legal parent did not enjoy a "constitutionally protected paramount interest in the companionship, custody, care and control of his or her child" if the parent's conduct was inconsistent with that right.

If a court found the parent had waived that right, then custody would need to be determined under the "best interest of the child" standard set out in G.S. Sect. 50-13.2(a).

"Price has always been here, but now it's clear that Price applies regardless of marital status or gender," said Durham attorney Gabriela J. Matthews, who represented the former partner awarded custody rights in Mason.

"The impact is that children who have been raised by two parents for most of their lives won't be cut off from one of them for reasons that a child wouldn't possibly be able to understand. "

Judges Wanda G. Bryant and Sanford L. Steelman Jr. concurred in both Mason (North Carolina Lawyers Weekly No. 08-07-0521, 37 pages) and Estroff (North Carolina Lawyers Weekly No. 08-07-0531, 22 pages).

CASE-BY-CASE BASIS

The appeals panel spelled out the legal framework for both decisions in Mason and went deep into the factual details in both cases to explain its conclusions.

The reason, according to Geer: "Although some courts have attempted to create a bright-line test for when the 'best interest of the child' standard should apply as between a legal parent and a third party, our Supreme Court, in Price, stressed that a parent's conduct 'needs to be viewed on a case-by-case basis. '"

Although Mason and Estroff both involved same-sex partnerships in which one party gave birth through artificial insemination, the similarities ended there.

"I think the big difference was the extent to which the partners in Mason attempted to legalize the non-biological parent as a parent," said Chapel Hill attorney Carol J. Holcomb, who represented the biological mother in Estroff.

"In that case, there was a parenting agreement that was extremely clear and articulate about affording the non-biological partner parental authority. In our case, there was none of that. "

JOINT CUSTODY IN MASON

In Mason, the partners had entered into a written and notarized agreement when the child was three years old that gave the non-biological partner "all of the rights and responsibilities of an equal parent," the District Court found.

The agreement referred to the non-biological partner as a "de facto parent" and contained detailed provisions relating to the partner's custody, visitation and financial support of the child if the women's relationship ended.

According to Geer, the agreement manifested the biological mother's intent for the partner to have a permanent relationship with the child and essentially served as an admission.

"But I think lawyers would make a mistake to take that one fact and say it met the Price test because of that one fact," said Matthews, the partner's attorney. "It was all of the facts taken together. "

Matthews pointed out that the two women had planned the pregnancy together and even combined their two names for the child's legal name.

The biological parent had also authorized the partner to obtain medical care for the child, to pay for the child's school and therapy and to have visitation with the child for nearly three years after the couple separated.

Those facts not only supported a finding that the biological mother had ceded parental rights to the partner, but it also led the Court of Appeals to conclude that joint custody was in the child's best interest.

"It was kind of a perfect case to find that the child's best interest was served," said Blan V. Minton, a Legal Aid attorney from Asheville who helped to file an amicus brief in the case.

NO CUSTODY IN ESTROFF

In contrast, the Court of Appeals found that the biological mother in Estroff had clearly manifested her intent to retain sole custody -- even though she had allowed the partner to help with financial care and support of the twins.

The court emphasized that the focus was on what parental rights the biological mother chose to cede to the partner and not on what others thought about the couple or what duties the partner had chosen to assume.

Since the facts established that the mother had not waived her constitutionally protected status, there was no need for a best interest analysis, the panel held.

While the appeals court did not address the issue of whether the partner had become a "parent by estoppel" -- a doctrine that remains unrecognized in the state -- it did "lay out how a legal parent could go about giving away their parental rights," said Samantha H. Cabe of Chapel Hill, who represented the mother in Estroff along with Holcomb.

"I think it goes a long way toward filling in the gaps for different kinds of families across the state who do not fit the traditional family mold," she said.

Questions or comments may be directed to guy.loranger<@>nc.lawyersweekly.com

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