North Carolina Appeals Court Upholds Joint Custody Award to Former Lesbian Partners

In a case of first impression for North Carolina, on May 6 the state’s court of appeals upheld a decision by Durham County District Judge Ann McKown to award joint custody of a child to Joellen Mason and Irene Dwinnell, former lesbian partners. McKown found that Dwinnell, the birth mother of a boy conceived through anonymous donor insemination, had willingly created a de facto parent status for Mason that she could not unilaterally dissolve when the women ended their partnership. Mason v. Dwinnell, 2008 Westlaw 1944823.

Mason and Dwinnell lived as domestic partners for eight years. After deciding that they wanted to raise a child together, they held a commitment ceremony, researched their options for conceiving a child, and jointly decided that Dwinnell would bear a child through donor insemination that they would then raise together as a family. They sought an anonymous sperm donor who had physical characteristics resembling Mason, and Mason fully participated in the process, attending Dwinnell’s insemination sessions and, after she became pregnant, the prenatal care appointments, hospital sessions and childbirth classes.

Mason attended their son’s birth and cut the umbilical cord. They gave the child the combined surname of Mason Dwinnell on his birth certificate, but only Dwinnell was listed as a parent because the hospital refused to list both women. However, they jointly agreed on naming of godparents, held a baptismal ceremony at which they held themselves out as the parents of the child, involved Mason’s parents as grandparents, and raised the child together as a family. On school forms and other papers, Dwinnell named Mason as the second parent.

When the child was three years old, in 2000, they signed a parenting agreement drafted by an attorney, in which they agreed that both of them were parents with equal parental rights. Dwinnell also executed a health care power of attorney authorizing Mason to approve medical care for the child, and they jointly agreed on his education in a private school. Mason was providing most of the financial support, and Dwinnell agreed that Mason would be able to take the dependent deductions for the child on her income tax.

Just a year later, however, they stopped living together, with Mason moving one block away. Over the next three years, they continued to share parenting responsibilities, with their son moving back and forth for overnights. Beginning early in 2003, they settled into a regular custody rotation, but early in 2004, Dwinnell unilaterally changed the schedule to cut down Mason’s parenting time, and as Mason saw her time with the child diminish, she filed a complaint in court seeking custody in October 2004. Dwinnell moved to dismiss the case, but the court rejected this motion, instead granting temporary joint legal and physical custody requiring that the child spend equal time with each party, pending the outcome of a trial on the merits.

After trial, on June 1, 2006, Judge McKown issued a permanent custody order, finding that Dwinnell "encouraged, fostered, and facilitated the emotional and psychological bond between the minor child and Mason," and that "throughout the child’s life, Mason has provided care for him, financially supported him, and been an integral part of his life such that the child has benefited from her love and affection, caretaking, emotional and financial support, guidance, and decision-making."

Based on these findings, McKown concluded that Dwinnell had waived her constitutional rights to exclude Mason, and that it was in the best interest of the child for Mason to continue to have equal parental rights of custody and visitation.

Affirming this ruling, the court of appeals emphasized that the sexual orientation of the parents had nothing to do with the case. Rather, and refreshingly, the court insisted that it was just applying the developing North Carolina law concerning the parental status of "third parties" who have been treated as de facto parents with the encouragement and consent of a child’s legal parent.

Writing for a unanimous three-judge panel, Judge Martha A. Geer also made clear that this was not a case of the court "enforcing" the parenting agreement that the women had signed when their child was three. Rather, she said, the court looked to the agreement as evidence of their intention that Mason play a permanent parenting role for the child, reinforcing the factual conclusions that Judge McKown had reached based on all the circumstances.

Normally, a birth or adoptive parent has a "constitutionally-protected paramount interest in the companionship, custody, care, and control of her child," but North Carolina courts recognize that when a parent’s conduct is "inconsistent" with this "paramount interest," it is appropriate to consider the "best interest of the child" in a custody contest involving a legal parent and a de facto parent such as Mason.

Although Judge McKown had also used the legal doctrine of parent by estoppel, under which a party is precluded from asserting a position that contradicts her past conduct, to reinforce her ruling, the court of appeals found this unnecessary, stating that it was declining to address the "doctrine of parent by estoppel adopted in other jurisdictions."

The court found persuasive a similar ruling by the New Jersey Supreme Court, V.C. v. M.J.B., 748 A.2d 539 (N.J.), cert. denied, 531 U.S. 926 (2000), which it quoted extensively, stating, "We stress that the cases that we have cited from other jurisdictions have each applied, as we do, a test applicable generally to third parties seeking custody of a child contrary to the wishes of the legal parent."

"We conclude that the district court’s findings of fact establish that Dwinnell, after choosing to forego as to Mason her constitutionally-protected parental rights, cannot now assert those rights in order to unilaterally alter the relationship between her child and the person whom she transformed into a parent. Her choice does not mean that Mason is entitled to the rights of a legal parent, but only that a trial court may apply the ‘best interest of the child’ standard in considering Mason’s request for custody, including visitation." In this connection, the court rejected Dwinnell’s argument that a judicial finding that she was an unfit parent would have to be a prerequisite to granting custody to Mason.

Judge Geer also wrote that the court was not creating some sort of "bright line test" or per se rule to govern these sorts of cases, but was rather focused on the particular facts of the case to determine whether the legal parent, Dwinnell, had effectively consented through her conduct to Mason becoming the de facto parent of her child, creating the kind of parental bond whose breaking would be detrimental to the child.

"Although this appeal arises in the context of a same-sex domestic partnership," wrote Judge Geer, "it involves only the constitutional standards applicable to all custody disputes between legal parents and third parties. We simply apply the law as set forth by our Supreme Court in Price [v. Howard, 484 S.E.2d 528 (N.C. 1997), a case that involved a stepfather seeking custody after divorcing the child’s mother], consistent with the holdings of the United States Supreme Court. Courts do not violate a parent’s constitutionally-protected interest by respecting the parent-child relationships that the legal parent – in accordance with her constitutional rights – voluntarily chose to create." The U.S. Supreme Court reference was primarily to Troxel v. Granville, 530 U.S. 57 (2000), a grandparent visitation case in which the Court struck down a state law that allowed anybody, regardless of past relationship to a child, to file an action seeking custody, and apparently authorized courts to award custody or visitation over the protest of a legal parent merely on a best interest finding, without giving any particular significance to the substantive due process rights of the legal parent.

Despite the court’s disclaimer, it is significant that the court decided to treat this case as no different from any other case involving a custody dispute between a legal parent and a de facto parent, given the long history of adverse treatment suffered by lesbian or gay co-parents in many state courts. This ruling is, for example, sharply different from the contrary approach that the New York Court of Appeals took in a similar case, Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991), still the controlling precedent in New York. In that case, the New York court treated the lesbian co-parent as a "legal stranger" to the child who lacked standing to get a hearing on the merits of her claim, even though the couple had planned together for the child’s birth and raised it jointly until they split up.

Comments

[J St. Clair]

This is a sad day in NC when a court can trump the undeniable rights of a legal parent. And more so when someone looks at this as a victory for homosexual rights. The child is the one who will suffer for a lifetime due to the shortsighted selfishness of these two women.

[Art Leonard]

The child only came into existence because these two women wanted to have a child together and raise it as a family. The court used evolving legal doctrine to try to figure out what would be in the best interest of this child, who has psychologically bonded with both of his mothers. This decision does not represent a sad day for N.C. - It represents a happy day when the courts try to reach a decision in a domestic relations matter that will ultimately benefit all the parties.