North Carolina Supreme Court on Two-Mother Families

In Boseman v. Jarrell (Dec. 20), Julia Boseman and Melissa Jarrell decided to raise a child together:

Plaintiff [Boseman] and defendant [Jarrell] met in 1998. At that time, plaintiff lived in Wilmington, North Carolina, and defendant lived in Rhode Island. The first time they met, they “discussed their desires to have children.” Roughly one month later, the parties began a romantic relationship. From the outset, the parties continued to voice their desires to have a child. In the spring of 1999, defendant moved from Rhode Island to Wilmington, and the parties began living together as domestic partners.

In May of 2000 the parties initiated the process of having a child. They decided that defendant would actually bear the child, but both parties would otherwise jointly participate in the conception process. The parties agreed to choose an anonymous sperm donor and researched and discussed the available options. They also attended the medical appointments necessary both to impregnate defendant and to address her prenatal care. Plaintiff read to the minor child “in the womb and played music for him.” Plaintiff also cared for defendant during the pregnancy and was present for the delivery. Defendant eventually gave birth to the minor child in October of 2002, and the parties jointly selected his first name.

Following the child’s birth, the parties held themselves out as the parents of the minor child. They gave the minor child a hyphenated last name composed of both their last names. They also “had a baptismal ceremony for the child at the plaintiff’s church during which they publicly presented themselves to family and friends as parents of the child.” Further, each of the parties integrated the minor child into their respective families and each family accepted the minor child.

The parties raised the child together, and in 2004-05 the plaintiff, with defendant’s consent, got a court order from a Durham County (N.C.) court adopting the child without severing defendant’s parental rights. According to this order, then, the child had both plaintiff and defendant as parents. But in May 2006, the couple broke up, and “defendant limited plaintiff’s contact with the minor child following the parties’ separation,” “while admitting ‘that the plaintiff is a very good parent who loves [the minor child] and that [the minor child] loves [plaintiff].'” Litigation ensued.

The North Carolina Supreme Court held, by a 5-2 vote, that the adoption could be challenged; the dissenters concluded that a state statute barred such challenges. The majority then held:

1. The adoption is invalid, because North Carolina statutes provide only for (a) adoptions that sever all existing parental rights (which clearly isn’t what the parties were getting), or (b) adoptions by a stepparent, which preserve the other parent’s rights (but which aren’t available here because the parties weren’t married to each other). And adoption is in North Carolina entirely a creature of statute; courts aren’t allowed to create new forms.

2. Nonetheless, the plaintiff should get joint custody, because (a) it would be in the child’s best interests, and (b) the defendant had voluntarily let the plaintiff play the role of a parent (and not just a temporary caretaker). (When item b is absent, a parent can’t lose full custody of a child simply because some other arrangement is in the child’s best interests; the standard for loss of full custody would be unfitness on the parent’s part.) In this, the court endorsed the very similar conclusion reached by the North Carolina Court of Appeals in Mason v. Dwinnell, a case I blogged about in May 2008.

Here is how the North Carolina Supreme Court majority reasoned:

A parent has an “interest in the companionship, custody, care, and control of [his or her children that] is protected by the United States Constitution.” So long as a parent has this paramount interest in the custody of his or her children, a custody dispute with a nonparent regarding those children may not be determined by the application of the “best interest of the child” standard.

A parent loses this paramount interest if he or she is found to be unfit or acts inconsistently “with his or her constitutionally protected status.” However, there is no bright line beyond which a parent’s conduct meets this standard. As we explained in [an earlier case, Price v. Howard], conduct rising to the “statutory level warranting termination of parental rights” is unnecessary. Rather, “[u]nfitness, neglect, and abandonment clearly constitute conduct inconsistent with the protected status parents may enjoy. Other types of conduct … can also rise to this level so as to be inconsistent with the protected status of natural parents.” …

[I]f a parent cedes paramount decision-making authority, then, so long as he or she creates no expectation that the arrangement is for only a temporary period, that parent has acted inconsistently with his or her paramount parental status….

The record in [this case] indicates that defendant intentionally and voluntarily created a family unit in which plaintiff was intended to act — and acted — as a parent. The parties jointly decided to bring a child into their relationship, worked together to conceive a child, chose the child’s first name together, and gave the child a last name that “is a hyphenated name composed of both parties’ last names.” The parties also publicly held themselves out as the child’s parents at a baptismal ceremony and to their respective families. The record also contains ample evidence that defendant allowed plaintiff and the minor child to develop a parental relationship. Defendant even “agrees that [plaintiff] … is and has been a good parent.”

Moreover, the record indicates that defendant created no expectation that this family unit was only temporary. Most notably, defendant consented to the proceeding before the adoption court relating to her child. As defendant envisioned, the adoption would have resulted in her child having “two legal parents, myself and [plaintiff].” In asking the adoption court to create such a relationship, defendant represented that she and plaintiff “have raised the [minor child] since his birth and have jointly and equally provide[d] said child with care, support and nurturing throughout his life.” Defendant explained to the adoption court that she “intends and desires to co-parent with another adult who has agreed to adopt a child and share parental responsibilities.” Thus, defendant shared parental responsibilities with plaintiff and, when occurring in the family unit defendant created without any expectation of termination, acted inconsistently with her paramount parental status…..

[B]ecause defendant has acted inconsistently with her paramount parental status, the trial court did not err by employing the “best interest of the child” standard to reach its custody decision.

By the way, here’s the court’s summary of the Price v. Howard (1997) precedent on which it relied:

In Price v. Howard we observed a custody dispute between a natural mother and a nonparent. The child in that case was born into a family unit consisting of her natural mother and a man who the natural mother said was the child’s father. Id. (“Knowing that the child was her natural child, but not plaintiff’s, she represented to the child and to others that plaintiff was the child’s natural father.”). The mother “chose to rear the child in a family unit with plaintiff being the child’s de facto father.”

After illustrating the creation of the family unit in Price, we focused our attention on the mother’s voluntary grant of nonparent custody. We stated:

This is an important factor to consider, for, if defendant had represented that plaintiff was the child’s natural father and voluntarily had given him custody of the child for an indefinite period of time with no notice that such relinquishment of custody would be temporary, defendant would have not only created the family unit that plaintiff and the child have established, but also induced them to allow that family unit to flourish in a relationship of love and duty with no expectations that it would be terminated.

However, if defendant and plaintiff agreed that plaintiff would have custody of the child only for a temporary period of time and defendant sought custody at the end of that period, she would still enjoy a constitutionally protected status absent other conduct inconsistent with that status.

Thus, under Price, when a parent brings a nonparent into the family unit, represents that the nonparent is a parent, and voluntarily gives custody of the child to the nonparent without creating an expectation that the relationship would be terminated, the parent has acted inconsistently with her paramount parental status.

The analysis both in Price and in Boseman seems right to me. As I mentioned in my earlier post, I’m inclined to think that the psychological parent doctrine (to which item 2.b in the case summary above is similar) is sound: If a child has come to treat someone as a parent, it’s generally very bad for the child to lose that person’s parenting; children’s bonds with adults stem from the adult’s childrearing, not from any genetic bond. And if a parent has voluntarily brought that adult into the child’s life as someone who provides parenting, then I don’t think the parent can claim the full measure of parental rights to the exclusion of that adult, and of the child’s likely best interests.

And if this approach is sound in general — for instance, when the psychological parent is a stepparent who raised the child from infancy (with the other biological parent out of the picture) — then it’s equally sound for same-sex relationships. Whatever one might say about whether in the abstract it’s better for a child to be raised by a woman and a man or by two women, a child who has formed deep emotional bonds with two women deserves the same protection for those bonds as does a child who has formed such bonds with a woman and a man. But in any case, whether or not I’m right on this, the issue and the decision struck me as likely to be of interest.