Missouri Appeals Court Rejects Lesbian Co-Parent Custody and Child Support Claims

A three-judge panel of the Missouri Court of Appeals, Western District, ruled on June 23 that a lesbian co-parent’s attempt to establish legal ties with the child born to her former partner could not be entertained on the merits under Missouri’s archaic family law, and that she also could not seek financial support from her former partner for the child whom she bore during their relationship. The court noted but never mentioned any significance of the fact that both children were conceived with sperm from the same anonymous donor, and thus they are biologically half-siblings.

The ruling in White v. White, 2009 Westlaw 1748551, drew a partial dissent from one member of the panel, who thought that the child support action should have been allowed under an estoppel theory.

The two mothers, Leslea Diane White and Elizabeth Michelle Crowe, were partners for about eight years beginning in 1997, according to the opinion for the court by Judge Joseph M. Ellis. They agreed to have children and raise them together as one family. Michelle, who had changed her surname to White during the relationship, bore C.E.W. in December, 2001. Then Leslea bore Z.A.W. in July 2004. The mothers’ relationship terminated in November 2005.

"For the next several months," write Judge Ellis, "the children lived part of the time with Leslea and part of the time with Michelle," but in May 2005 Michelle decided to cut off any contact between Leslie or Z.A.W. and C.E.W. Thus, the half-siblings were denied further contact, and Leslie was denied further contact with C.E.W., a child with whom she bonded as a parent over a period of more than three years. "It appears that neither the children nor the women have had any contact with each other since that date," observed Ellis.

The following January, Leslea sued in Boone County Circuit Court, both on her own behalf and on behalf of both children, seeking a declaration that the two women are both parents of both children. She asked the court to award joint legal and physical custody and to order both women to pay reasonable child support for the expenses of raising both children. Michelle filed a motion to dismiss the case, claiming that Leslea lacking standing to assert these legal claims and that the Missouri Uniform Parentage Act, which Michelle argued was the exclusive vehicle for determining issues of parentage in the state, provided no legal basis for Leslea’s claims. Leslea relied on a construction of the Uniform Parentage Act that has been adopted in some other states, as well as various common law and equitable theories.

The Boone County Family Court Commissioner rejected Michelle’s motion, but on appeal Circuit Court Judge Gary G. Augustine reversed this decision and dismissed the case. Leslea appealed to the Court of Appeals.

The court rejected Michelle’s argument that the Missouri Uniform Parentage Act provides the only mechanism for determining parental status in Missouri, but otherwise ruled against Leslea on all counts.

First, the court found that the Act itself could not be construed to authorize a declaration of maternity under these circumstances. Although the Act does provide that its terms should be construed in a gender-neutral way, the court rejected the argument that this meant that a woman could seek a declaration of maternity at the same time as the identity of a child’s biological mother was already known and established. The court found that the provision for establishing parental identity was to serve to affirm biological relationships, and since Leslea is not claiming to be biologically related to C.E.W., she cannot use the statute for that purpose.

Turning to non-statutory arguments, the court rejected all the common law and equitable theories that Leslea had raised. It found that Missouri courts had not accepted such theories as "de facto parent" or "in loco parentis" as a basis for establishing legal parenting rights, and that old cases on which Leslea had relied concerning stepparents were no longer valid as precedents because the legislature had enacted specific provisions dealing with stepparents that displace old common law rules.

The court also rejected Leslea’s attempt to use the theory of equitable estoppel, under which courts may preclude a party from denying particular facts on equitable grounds, finding that this legal theory had been embraced by Missouri courts only in a defensive posture, not as an affirmative theory to establish standing in a custody or visitation dispute.

Finally, the court rejected Leslea’s argument that this case presented "exceptional circumstances" that would justify allowing a "third party" to seek custody even though a child’s biological parent had not been deemed "unfit." "Neither our statutes nor our case law remotely suggest that any third party that comes along has standing to bring an action seeking custody of children," wrote Ellis. This was an offensively gratuitous statement, in light of the uncontested facts that the women were in a long-term relationship when the children were conceived and Leslea was not just "any third party that comes along," but acted as a mother towards both children from their respective births until Michelle cut off her contact with C.E.W.

"Leslea has not cited, nor has our independent research revealed, any case involving third party custody that did not involve intervention in pending litigation by third parties or the third parties being named as parties in the initial custody case," wrote Ellis, finding that prior use of the "exceptional circumstances" doctrine had occurred in cases where a third party had been drawn into the litigation surrounding dissolution of a legal marriage. The court refused to draw analogies to this case.

Leslea had also argued on appeal that there was some contractual basis for her claim that the two women should be held obligated for child support for both children, but the court noted that she had not raised this claim in her original petition and argument before the trial court, so it was waived before the court of appeals. Leslea additionally raised various constitutional claims, none of which impressed the court, which rejected the argument that her right to due process or equal protection of the law was violated by denying her standing to bring this case. The court totally skirted the argument that the children themselves might have rights to maintain contact with both of their parents or with each other, for that matter, merely noting that the parenting statute does not authorize a child to seek to establish parental ties with a third party.

Judge Alok Ahuja joined with the other judges on every point except the estoppel claim, arguing that the facts alleged by Leslea could provide the basis of a claim under the contract-related doctrine of "promissory estoppel," which authorizes legal relief for somebody who has relied on an express promise and changed his or her position in such reliance. In this case, Leslea alleged that the women had both become pregnant and bore children in reliance on mutual promises that the children would be raised jointly and supported by both women. While Judge Ahuja agreed with the majority of the court that this theory could not be used to establish standing to seek custody or visitation, the judge contended that Leslea’s claim concerning child support might be established under this theory.

Lambda Legal Senior Staff Attorney Susan Sommer represents Leslea White and the children, and is preparing papers to seek permission to appeal to the Missouri Supreme Court.

Comments

[Deborah]

Very sad. While the courts are busy deciding about gay marriage children are being deprived of de facto parental relationships. I don't know how a parent of any sexual orientation could do that to their child.

[Child Custody Agreement]

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[Art Leonard]

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