Courts

Family North Carolina Magazine—Jul/Aug 2008

by Tami Fitzgerald

Joint Custody to Lesbian Couple

by Tami Fitzgerald, J.D.

In a May 6th opinion, the North Carolina Court of Appeals granted joint legal custody of a minor child to the biological mother of the child and her estranged lesbian partner. This is the first time a North Carolina appellate court has recognized any custodial rights of non-parent homosexual partners. In Mason v. Dwinnell, the Court of Appeals granted permanent joint custody to the biological mother of the child and her former lesbian partner, because the Court said the biological parent had intentionally created a permanent parent-like relationship between her child and her former partner.

According to court documents, Mason and Dwinnell were domestic partners for eight years and held a commitment ceremony attended by their families and friends. They researched options for having a child, and Dwinnell was artificially inseminated with sperm from an anonymous donor. After Dwinnell birthed a son, both she and Mason (after whom the child was named) shared caretaking and financial responsibilities for the child, with Mason claiming him as a dependent on her income taxes. When the child was three years old, Mason and Dwinnell entered into a Parenting Agreement, acknowledging that although Mason was not a biological parent and could not legally adopt the child under North Carolina law, she was a de facto parent and all major decisions regarding the child would be made jointly, including, but not limited to, residence, support, education, religious upbringing and medical care.

After Dwinnell and Mason ceased living together, they shared custody of the child until a dispute arose which resulted in the lawsuit. The Court of Appeals justified granting joint custody to the mother’s lesbian partner by stating: “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.”

In a related opinion issued on the same day, the Court of Appeals denied custodial and visitation rights to the former lesbian partner of the biological mother of twins. In Estroff v. Chatterjee, the Court determined that Chatterjee, who was involved in an eight-year domestic partnership with Estroff and was artificially inseminated in order to give birth to twins, had not demonstrated an intent to bestow on Estroff any parental or custodial rights. The Court concluded: “Chatterjee saw Estroff as ‘a significant, loving adult caretaker but not as a parent.’” Unlike the Mason v. Dwinnell case, this couple had not held or even discussed a commitment ceremony or entered into a formal Parenting Agreement, even though they had shared financial and caretaking responsibility for the twin daughters. The Court said that the most significant factor was that the biological parent had never intended for her to become a “de facto parent,” even though her intentions were not disclosed to her partner.

In both cases, the Court of Appeals noted that “absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children,” the Fourteenth Amendment to the U.S. Constitution protects as paramount the right of biological or adoptive parents to the companionship, custody, care, and control of their children. However, the Court found that when a legal parent “has acted inconsistent with her paramount parental right,” as determined on a case-by-case examination of the parent’s behavior, the “best interest of the child” (prescribed in North Carolina G.S. § 50-13.2(a)) should determine whether a person who is not a parent shall be granted custody.

Judge Matha Geer wrote both opinions, which were unanimous decisions and were not appealed. Judge Geer specifically denied in Dwinnell that the Court was creating new legal rights just for homosexual couples. She stated that: “the nature of the relationship [i.e. a lesbian couple] has no legal significance to the issues of custody and visitation: [citing a Pennsylvania Supreme Court case] ‘The ability to marry the biological parent and the ability to adopt the subject child have never been and are not now factors in determining whether the third party assumed a parental status and discharged parental duties. What is relevant, however, is the method by which the third party gained authority to do so.’” Judge Geer found that although the case arose in the context of a same-sex domestic partnership, it involved the same “constitutional standards applicable to all custody disputes between legal parents and third parties.” When a legal parent, like Dwinnell, chooses to confer on a third party (in this case, her lesbian partner) the status of a de facto parent, according to the opinion, the legal parent has acted in a manner inconsistent with her constitutionally-protected right to exclusively make decisions concerning the custody, care, and control of her child, and she must share custody with the de facto parent.

Even though homosexual couples are not permitted to marry or to adopt children in North Carolina, some are still individually birthing or adopting children. Now that the North Carolina Court of Appeals has recognized a right to custody by a homosexual partner of a biological parent, it may impact the legal status of the homosexual relationship itself.

California Imposes Homosexual “Marriage”
On May 14, 2008, the California Supreme Court declared that the right to marry is a fundamental inalienable civil right guaranteed to an individual by the California Constitution, and that same-sex couples have the right to marry in spite of two state statutes limiting marriage to opposite-sex couples. The Court found that the Constitutionally based right to marry encompasses such core legal rights that are “so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate….” The Court said:

“[O]ur state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibility to care for and raise children does not depend upon the individual’s sexual orientation, and more generally, that an individual’s sexual orientation—like a person’s race or gender—does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”

California has a domestic partnership statute that affords same-sex couples all of the core substantive rights that are conferred upon married heterosexual couples. The California Court found that the distinction between the legal relationship for opposite sex couples (marriage) and the legal relationship for same-sex couples (domestic partnership) violates the same-sex couples’ Constitutional right to marry, because it does not afford them the respect and dignity enjoyed by opposite-sex couples. The Court said:

“[W]e conclude that the right to marry, as embodied in Article I, sections 1 and 7 of the California Constitution, guarantees same-sex couples the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected relationship that enjoys all of the constitutionally based incidents of marriage.”

Further, the Court ruled that the “sexual orientation” classification violates the state Constitution’s guaranty of equal protection of the laws. It applied “strict scrutiny” to the sexual orientation classification and concluded that sexual orientation—like gender, race, and religion—constitutes a suspect class, and that the different treatment to the class impinges upon a same-sex couple’s fundamental right to have their family relationship accorded the same respect and dignity enjoyed by opposite-sex couples. In reaching this conclusion, the Court threw out part of the traditional test for suspect classification—immutability—noting that a person’s religion (which is considered a suspect classification) is not immutable (i.e. it can change). “Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment,” the Court said.

The Court concluded that the state’s interest in retaining the traditional definition of marriage between a man and a woman is not a compelling state interest that justifies different treatment for same-sex couples, nor is it necessary. The Court reasoned that excluding same-sex couples from the designation of marriage: (1) is not necessary in order for married opposite-sex couples to enjoy all the benefits of marriage; (2) casts doubt on whether same-sex couples and their families enjoy dignity equal to that of opposite-sex couples; (3) lessens the stature of same-sex relationships compared to opposite-sex relationships; and (4) reflects upon gays and same-sex couples as “second-class citizens.”

Although it acknowledged that since statehood California has historically recognized as legal only a marriage between a man and a woman, the Court ruled: “[T]o the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.” The Court rejected procreation and every other rational argument that would support limiting marriage to opposite-sex couples. It ordered that California’s marriage statutes be interpreted as allowing same-sex marriage as well as opposite-sex marriage, rejecting a “separation of powers” argument that only the citizens of California or the Legislature had the power to make such policy decisions.

The California Supreme Court’s decision arose from the issuance of marriage licenses to approximately 4,000 gay and lesbian couples at the direction of the San Francisco Mayor in February, 2004. The California Supreme Court eventually directed the City of San Francisco to cease issuing marriage licenses to gay and lesbian couples, but the City and a number of same-sex couples filed suit in the interim challenging the constitutionality of California’s marriage laws. The cases were consolidated under the name “Marriage Cases.” The Supreme Court’s ruling affirmed the Superior Court’s ruling but overruled the earlier decision of a divided 3-judge panel of the Court of Appeals, which had ruled that the statutes were constitutional in limiting marriage to unions between a man and a woman.

In November, California voters will have a chance to weigh in on whether same-sex couples should have the right to marry in the state, when they vote on an amendment to their state Constitution which will limit marriage to opposite-sex couples. The amendment is simple: “Only marriage between a man and a woman is valid or recognized in California.” In spite of public outcry and numerous requests, including one from Attorneys General for 10 states (North Carolina Attorney General Roy Cooper did not participate in the request for stay), the California Court of Appeals refused to stay its decision until the November election and the outcome of voting on the Constitutional Amendment. Therefore, as of this writing, the State of California is poised to begin issuing marriage licenses to same-sex couples when the Supreme Court’s decision takes effect on June 16 at 5:00 p.m. It will very likely create chaos in states lacking a constitutionally protected definition of marriage, like North Carolina, because California law allows people who are not residents of California to marry there. North Carolina same-sex couples will have the freedom to be “married” in California, return to North Carolina, and then claim they are married in North Carolina.

Tami L. Fitzgerald is staff attorney with the North Carolina Family Policy Council.