N.C. Court Decides Two Homosexual Custody Cases

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N.C. Court Decides Two Homosexual Custody Cases

Special Report - May 8, 2008
In a May 6th opinion, the N.C. 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 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 biological mother 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 N.C. law, she was a de facto parent and all major decisions regarding their 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 voluntarily 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 in a separate but similar case, the Court of Appeals denied custodial and visitation rights to the former lesbian partner of the biological parent of twins. In Estroff v. Chatterjee, the Court determined that Chatterjee, who was involved in an eight-year domestic partnership with Estroff, was artificially inseminated, and gave birth to twins, had not demonstrated an intent to bestow on Estroff any parental or custodial rights to the children. 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 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 most significant factor to the Court of Appeals was that the biological mother had never intended for her partner to be a “mother” to the twins or 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 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 N.C.G.S. § 50-13.2(a)) should determine whether a person who is not a parent shall be granted custody. Further, the Court specifically denied in Mason v. Dwinnell that it was creating new legal precedents for homosexual couples by stating:

"Although this appeal arises in the context of a same-sex domestic partnership, it involves only the constitutional standards applicable to all custody disputes between legal parents and third parties….Courts do not violate a parent's constitutionally-protected interest by respecting the parent-child relationships that the legal parent—in accordance with her constitutional rights—voluntarily chose to create. We hold, under the circumstances of this case, as found by the district court, that Dwinnell made the choice, with respect to Mason's relationship to her child, to act in a manner inconsistent with her constitutionally-protected right to custody, care, and control of her child and her right to exclusively make decisions concerning the care, custody, and control of that child. The district court, therefore, properly concluded it should apply the 'best interest of the child' standard."

Judge Martha Geer, wrote both opinions, which were unanimous decisions. They can only be appealed if the Supreme Court agrees to hear the cases. Judge Geer 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.’"

“This is the first time an appeals court in North Carolina has ruled on the issue of custodial rights of homosexual partners,” said Tami Fitzgerald, attorney for the N.C. Family Policy Council. “Even though homosexuals are not permitted to marry or to adopt children in North Carolina, they are still having children. When these couples separate, it creates a messy situation to determine who has custodial rights. Unfortunately, the children are the ones who ultimately suffer the most,” Fitzgerald concluded.