504 P.3d 260
Alaska2021Background
- Rosemarie P. and Kelly B. were domestic partners for ~14 years and decided to have a child by artificial insemination; Rosemarie is the biological parent and Kelly participated in pregnancy, birth, and daily caregiving.
- Kelly did not formally adopt the child after receiving legal advice that made adoption seem problematic; Rosemarie named Kelly guardian in a will and the partners raised the child as a family.
- The relationship ended in 2018; Rosemarie later cut off Kelly’s contact with the child and Kelly filed in superior court seeking joint custody.
- The superior court held hearings (including psychological evaluation evidence) and found Kelly to be a legal parent under the legitimation statute and, alternatively, a psychological parent; it awarded joint legal custody and 50/50 physical custody, finding by clear and convincing evidence that denying Kelly custody would cause clear detriment to the child.
- Rosemarie appealed; the Alaska Supreme Court affirmed the superior court’s psychological-parent analysis and custody award, and declined to resolve constitutional/interpretive issues regarding the legitimation statute.
Issues
| Issue | Rosemarie’s Argument | Kelly’s Argument | Held |
|---|---|---|---|
| Whether Kelly is a psychological parent and whether denying her custody would clearly detriment the child | Evidence insufficient: no experts for Kelly, witness testimony conflicted, allegations of abuse and instability; trial court misweighed credibility | Kelly was a day-to-day caregiver with a strong bond; witnesses and expert supported fitness and capacity to follow court orders | Affirmed: trial court’s factual findings not clearly erroneous; Kelly is a psychological parent and clear detriment would result from severing the relationship (clear-and-convincing standard met) |
| Whether expert testimony is required to establish psychological-parent status | Court should require expert proof | Expert testimony is not strictly required; testimony and other evidence suffice | Held: Alaska law does not mandate expert testimony for psychological-parent findings; not error to base decision on lay and expert evidence presented |
| Whether the custody award violated Rosemarie’s constitutional parental-rights protections | Award to third party violated fundamental parental right absent finding of parental unfitness | Third-party custody framework (clear-and-convincing showing of unfitness or clear-detriment to child) protects parental rights and was properly applied here | Held: No constitutional violation; court applied accepted third-party custody standard and made required clear-and-convincing welfare finding |
| Whether Alaska’s legitimation statute applies to non-biological same-sex parents / whether statute raises equal protection concerns | Argued statutory language ambiguous and may not cover non-biological same-sex parents | Superior court interpreted statute to include putative parents regardless of sex; raised equal protection concerns if read otherwise | Held: Supreme Court did not decide the statutory/constitutional question because psychological-parent ruling resolved custody; legislature may address statutory ambiguity |
Key Cases Cited
- Dara v. Gish, 404 P.3d 154 (Alaska 2017) (third-party custody standard; clear-and-convincing showing of unfitness or welfare requirement)
- Osterkamp v. Stiles, 235 P.3d 178 (Alaska 2010) (psychological-parent concept and clear-detriment analysis)
- Carter v. Brodrick, 644 P.2d 850 (Alaska 1982) (recognition of psychological parent relationships)
- Tomal v. Anderson, 426 P.3d 915 (Alaska 2018) (context on domestic-partnership/marriage-like relationships)
- Obergefell v. Hodges, 576 U.S. 644 (2015) (same-sex couples’ constitutional marriage rights)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental-rights constitutional protection)