Be Careful What You Wish For

Delaware lesbian cannot challenge children’s custody after accepting support payments

A lesbian mother who sought and received child support payments from her former partner was precluded from appealing a joint custody order, according to a unanimous March 7 ruling by the Delaware Supreme Court, announced in an opinion by Justice Randy J. Holland.

The case pitted Erica M. Smith against Sheila A. Smith, former partners who both conceived children with sperm donated by the same man. Erica bore triplets, who are now nine years old, and Sheila gave birth to a daughter, now five. After the women ended their relationship, they negotiated an agreement under which the children would live with Sheila, and Erica would have liberal visitation. But after just a few months, Erica told Sheila she would no longer observe the agreement, and took the triplets from Sheila’s home. This provoked Sheila into filing suit for joint custody of all four children, arguing that she should be recognized as a parent of the trips under the Delaware Parentage Act or, alternatively, that the court should exercise its equitable powers to recognize her as a de facto parent.

The Family Court in New Castle County found that Sheila was a de facto parent of the triplets and that it was in the best interest of all the children to award joint custody, with each child having primary residence with his or her biological mom and liberal visitation rights for each mom with those children not living with her. Erica, claiming that Sheila had no standing to seek custody of the triplets, filed an appeal.

But in the original proceeding, Erica had filed her own action seeking child support payments from Sheila to help her with the triplets, arguing that Sheila “owes a legal duty of support to the [triplets]” and requesting retroactive payments covering a two-year period. The Family Court had ordered Sheila to make monthly payments of $721, which Erica accepted. The support order was, of course, premised on Sheila’s responsibility as a de facto parent of the triplets, as had been determined in the custody proceeding.

To the Supreme Court, Erica’s appeal of the joint custody award was incongruous. Citing and quoting from an old 1894 case, Justice Holland pointed out, “No rule is better settled than that a litigant who accepts the benefits or any substantial part of the benefits of a judgment or decree is thereby estopped from reviewing and escaping from its burdens. [She] cannot avail [herself] of its advantages, and then question its disadvantages in a higher court.”

Holland continued, “Erica has accepted child support benefits from Sheila for the triplets that were awarded on the basis of the de facto parent determination and the joint custody judgments that Erica seeks to overturn in this appeal. Consequently, we have concluded that this appeal must be dismissed.”