No Support Burden on Lesbian Ex-Partner

High court in Massachusetts says prior agreement on child care imposes no obligation

By a sharply divided 4-3 vote, the Massachusetts Supreme Judicial Court ruled on August 25 that although a lesbian co-parent promised to contribute support for the child born to her former partner, such a promise was not a binding contract in the state and that the courts could not order her to support the child.

The opinion for the court by Justice Judith A. Cowin found that it would be contrary to public policy to require somebody who is not a “parent” under the law to pay child support, even when they had promised to do so. This case, involving former partners referred to in court papers as T.F. and B.L., was somewhat unusual in that the co-parent moved out of their apartment a few months before the child was born.

The women met in 1995 and began living together in the fall of 1996. After a commitment ceremony in 1999, they pooled their resources and designated each other as beneficiaries on their insurance and retirement plans. T.F. had long wanted to have a child, but B.L. was reluctant and only gave in when it looked like this might be necessary to save the relationship. Both women had physical problems that created barriers to their pregnancy, but T.F. eventually became pregnant through donor insemination. B.L.’s willingness for them to have a child, however, did not save the relationship, and she moved out in May 2000, less then two months before the baby’s premature birth.

Before she moved out, B.L. expressed regrets about being a “separated parent,” said she hoped to be able to adopt as a co-parent even though the couple was no longer together, and, according to T.F.’s legal complaint, “promised financial support and promised to talk later about the details since she wanted to just focus on the break-up of the relationship at that time.”

B.L. visited the baby for several months, but then broke off her relationship and refused to provide any support beyond the initial $800 she had contributed.

T.F. filed suit against B.L. in county probate and family court, where Judge Gail Perlman concluded that there theoretically was an “implied contract” between the women. But uncertain whether “parenthood by contract” was possible in Massachusetts, Perlman reported the matter to the Appeals Court, and the Supreme Judicial Court took the case directly.

Cowin found that Perlman was correct in finding that B.L. had made the agreement T.F. claimed, but that “the question remains whether the court can enforce this contract.” She found that it could not.

The court specifically rejected an argument raised by the dissenters, who suggested that the courts have general powers to make orders in the best interest of children.

“The equity powers conferred by the legislature on the court are intended to enable that court to provide remedies to enforce existing obligations; they are not intended to empower the court to create new obligations,” Cowin wrote.

The three dissenters, in an opinion by Justice John M. Greaney, while agreeing that “parenthood by contract is not the law in Massachusetts,” argued that there are strong public policies expressed by Massachusetts statutes to support a court’s use of its equitable powers to ensure proper support for children.

“That our statutes offer the plaintiff no remedy, because the defendant is not a legal parent, does not preclude an order of child support,” Greaney wrote. “The existence of an agreement to support on the part of the defendant, buttressed by society’s interests (as expressed through our statutes and our case law) and the best interests of the child standard, requires relief here.”

Greaney and Cowin were on the same side in last year’s historic ruling by the Supreme Judicial Court recognizing same-sex marriage rights.

Bennett Klein, an attorney at Boston’s Gay and Lesbian Advocates and Defenders, argued the case for T.F.

We also publish: