Big Co-Parent Win in Washington

State Supreme Court says lesbian ex-partner can have equal standing in child’s parenting

The Washington State Supreme Court, in a 7-2 ruling announced on November 3, will allow a lesbian co-parent to present evidence to qualify as a “de facto parent” and seek the rights of a legal parent. Upholding a ruling by the state’s court of appeals, the Supreme Court found that if a same-sex co-parent could satisfy a list of factors approved by courts in several other states, including New Jersey and Wisconsin, she should be treated as the equivalent of a legal parent on custody and visitation questions.

The court, however, rejected an alternative theory also approved by the court of appeals, under which a co-parent could seek third-party visitation rights without a finding of de facto parenthood, because that visitation rights theory had been overturned by the U.S. Supreme Court.

Sue Ellen Carvin and Page Britain lived together from 1989 until 2001. In 1994, the couple recruited a close male friend, John Auseth, to be the sperm donor for Britain, who was inseminated by Carvin. The couple’s child, L.B., was born in May 1995 and lived with both mothers, who according to Carvin, fully shared parenting responsibilities for nearly six years until they split up. They continued to share custody of the child for another year until Britain barred Carvin’s contact with the child.

Carvin sued, seeking a declaration as a legal parent under the state’s parenting code or alternatively either recognition as a de facto parent or third-party visitation rights. In her efforts to strengthen her claim as the sole mother, Britain married Auseth, though he later disappeared, according to the court decision by Justice Bobbe J. Bridge.

At the trial level, a judge found that Carvin had bonded with the child, but “reluctantly” agree to dismiss her case, finding that state law did not recognize her as a legal parent and that the 2000 U.S. Supreme Court decision in Troxel v. Granville, which reversed a state court ruling on behalf of a child’s grandparents, invalidated a third-party visitation claim by a lesbian co-parent.

The Court of Appeals, however, accepted Carvin’s argument that she could be declared a de facto parent and thereby be afforded the rights of a legal parent. It also said she could seek visitation as a third party who had a parental relationship with the child, saying that her claim, based on six years of parenting in an intact family unit, was stronger than the grandparents’ rights denied in the Troxel case.

In explaining its decision, the state Supreme Court majority acknowledged that the case represented a major policy challenge.

“In the face of advancing technologies and evolving notions of what comprises a family unit, this case causes us to confront the manner in which our state, through its statutory scheme and common law principles, defines the terms ‘parents’ and ‘families,’” Bridge wrote. “Specifically, we are asked to discern whether, in the absence of a statutory remedy, the equitable power of our courts in domestic matters permits a remedy outside of the statutory scheme, or conversely, whether our state’s relevant statutes provide the exclusive means of obtaining parental rights and responsibilities.”

The disagreement between the court majority and the two dissenters came down to two fundamental issues—a difference on whether statute provided the only means of defining parentage and a difference about what is constitutional in light of Troxel. For the majority, statutory provisions on parental rights were not exclusive, and were to be supplemented, for cases not anticipated by legislators, by the court’s authority to fashion rules in a child’s best interests.

The dissenters argued strongly that the majority decision violated Britain’s constitutional rights as set forth in Troxel, which expanded on the precedent that a fit legal parent has a constitutional right, generally free of state interference, to raise his or her children. When Troxel was announced, there was speculation about how this ruling might affect the claims of same-sex co-parents.

The majority finessed the Troxel issue by deciding that ultimately the custody and visitation dispute in this case is not between a legal parent and a third party, but rather between two parents, assuming Carvin wins her declaration as a de facto parent. In such an event, the court decides the case by a review of all the relevant circumstances in search of a result that will serve the best interests of the child.

Carvin still has the task of establishing to the court’s satisfaction that she qualifies as a de facto parent, although Bridge’s opinion leaves little doubt that she can achieve that if the court decides based on a full trial record that her allegations are true. But Britain could forestall that by an appeal to the U.S. Supreme Court, which might view this as a novel question of federal constitutional law.

If the Supreme Court took the case, it would be the first time that body has considered a question of gay family law on the merits and, depending upon the timing, could be the first substantive gay law case to be considered by the post-O’Connor Supreme Court.