In re the Matter of the PARENTAGE OF L.B.
Sue Ellen ("Mian") CARVIN, Respondent,
v.
Page Britain, Petitioner.
Supreme Court of Washington, En Banc.
*163 Mr. Brian Haig Krikorian, Ms. Erica Krikorian, Seattle, for Petitioner/Appellant.
Ms. Patricia S. Novotny, Attorney at Law, Ms. Janet Marie Helson, Skellenger Bender, Ms. Nancy Lynn Sapiro, Northwest Women's Law Center, Seattle, for Appellee/Respondent.
Lorraine Alicia Rimson, Seattle, for Amicus Curiae, Amara Parenting and Adoption Services, Children of Lesbians & Gays, Wash. State Court Appointed Special.
H. Michael Fields, Seattle, for Amicus Curiae American Academy of Matrimonial Lawyers.
Aaron Hugh Caplan, Seattle, Leslie Cooper, New York City, for Amicus Curiae American Civil Liberties Union of Wash., Lesbian & Gay Rights Project of the ACLU.
Katherine Hunt Federle, Angela Lloyd, Columbus, OH, for Amicus Curiae Justice for Children Project.
Lisa Kay Barton, O'Brien Law Firm PLLP, Issaquah, for Amicus Curiae Justice for Children Project.
Jamie D. Pedersen, Laura Kristine Clinton, Kristin Johanna Borass, Preston Gates & Ellis LLP, Seattle, Shannon Minter, Courtney Joslin, National Center for Lesbian Rights, San Francisco, CA, Jennifer C. Pizer, Lambda Legal Defense & Education Fund, Los Angeles, CA, for Amicus Curiae National Center for Lesbian Rights & Children of Lesbians & Gays.
Matthew Jolly, Bellevue, for Guardian ad Litem Matthew Jolly.
BRIDGE, J.
¶ 1 In 1989, after dating for several months, Page Britain and Sue Ellen ("Mian") Carvin began living together as intimates. Five years later, they decided to add a child to their relationship and together artificially inseminated Britain with semen donated by a male friend. On May 10, 1995, Britain gave birth to a baby girl, L.B., and the partners began actively coparenting her, both taking a committed, active, and loving role in her nurturing and upbringing. Then, when L.B. was six years old, Britain and Carvin ended their relationship and an acrimonious spate of litigation over access to L.B. ensued.
¶ 2 We must now determine whether Sue Ellen Carvin, who is neither a biological nor adoptive parent, has standing under Washington law to petition our courts for a determination of coparentage with regard to L.B. We conclude that she does. We are also asked to decide, in the alternative, whether Carvin has standing to assert rights to visitation with L.B. under Washington statute. We conclude that she does not.
¶ 3 The equitable power of the courts to adjudicate relationships between children and families is well recognized, and our legislature has evinced no intent to preclude the application of an equitable remedy in circumstances such as these. Accordingly, we now hold, as did the Court of Appeals, that Washington's common law recognizes the status of de facto parents and grants them standing to petition for a determination of the rights and responsibilities that accompany legal parentage in this state. Therefore, Carvin should have the opportunity to present evidence to the court sufficient to establish her status as a de facto parent of L.B. and if successful to obtain the rights and responsibilities attendant to parentage. However, because we have previously held Washington's third party visitation statutes to be unconstitutional and thereby inoperative, we reverse the Court of Appeals' alternative holding that Carvin may petition for visitation pursuant to RCW 26.10.160(3).
I
Facts and Procedural History
¶ 4 Carvin and Britain became romantically involved in a same-sex relationship in June *164 1989 and cohabitated from September 1989 until February 2001. In 1994 the couple jointly decided to conceive and raise a child. A close male friend of theirs, John Auseth, agreed to donate sperm to assist in their efforts. The parties conducted the artificial insemination in their home, with Carvin personally inseminating Britain with the donor sperm.[1] Carvin accompanied Britain to her prenatal appointments, and they participated together in prenatal birthing classes. On May 10, 1995, Carvin was present at and assisted in the birth of L.B. When she was born, the parties gave L.B. family names representing both Carvin's and Britain's family. In L.B.'s baby book, Britain listed herself under "mother" and altered "father" to also read "mother," listing Carvin. Clerk's Papers (CP) at 112-13.
¶ 5 For the first six years of L.B.'s life, Carvin, Britain, and L.B. lived together as a family unit and held themselves out to the public as a family. Carvin and Britain shared parenting responsibilities, with Carvin actively involved in L.B.'s parenting, including discipline decisions, day care and schooling decisions, and medical care decisions. Both parties were named as "parents" on L.B.'s kindergarten and first grade records. While the parties now dispute the nature of their relationship and the extent of Carvin's role as a "mother," as the Court of Appeals notes, "the record reflects that Carvin provided much of the child's `mothering' during the first six years of her life." In re Parentage of L.B.,
¶ 6 L.B. was nearly six years old when the parties ended their relationship. After initially sharing custody and parenting responsibilities, Britain eventually took measures to limit Carvin's contact with L.B. and in the spring of 2002, unilaterally terminated all of Carvin's contact with L.B. L.B. was then seven years old.
¶ 7 Seeking to continue her relationship with L.B., on November 15, 2002, Carvin filed a petition for the establishment of parentage in King County Superior Court.[3] In it she sought, in relevant part, (1) that she be declared the legal parent of L.B. pursuant to the Uniform Parentage Act (UPA), chapter 26.26 RCW, (2) that she be declared a parent by equitable estoppel or that she be recognized as a de facto parent, and finally (3) that she be allowed statutory third party visitation rights.
¶ 8 On December 13, 2002, the family court commissioner dismissed Carvin's petition based on a determination that Carvin lacked standing under the UPA and that the UPA does not grant standing to "psychological" parents. CP at 298. The commissioner further declined to order visitation pursuant to chapter 26.10 RCW. Carvin moved for a revision of the commissioner's ruling. On revision, the trial judge found that "there is a substantial relationship between Petitioner Carvin and the child in this case" and that "both parties care deeply" for the child. Id. at 311. He further found neither Britain nor Carvin to be "unfit." Id. at 312. Finally, he *165 found that "[t]here is a substantial showing in the record that terminating visitation between [Carvin] and the child harmed the child. . . ." Id. However, he "reluctantly" affirmed the commissioner's ruling on all three grounds, holding that Carvin lacked standing under the UPA and as a de facto parent, and finally that if the third party visitation statute survived In re Custody of Smith,
¶ 9 Carvin appealed. The Court of Appeals agreed that Carvin lacked standing under the UPA but reversed the superior court on the other two grounds, determining that the legislature's omission of any language addressing the legal rights of parties to familial relationships such as the one presented here does not imply the complete denial of remedy but rather leaves the matter to be resolved by common law. In re Parentage of L.B.,
(1) the natural or legal parent consented to and fostered the parent-like relationship; (2) the petitioner and the child lived together in the same household; (3) the petitioner assumed obligations of parenthood without expectation of financial compensation; and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
Id. at 487,
¶ 10 Britain petitioned this court for review, which we granted.[4]
II
Analysis
¶ 11 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." During the first half of Washington's statehood, determinations of the conflicting rights of persons in family relationships were made by courts acting in equity. But over the past half-century, our legislature has established statutory schemes intended to govern various aspects of parentage, child custody disputes, visitation privileges, and child support obligations. See generally ch. 26.26 RCW (parentage), ch. 26.09 RCW (responsibilities to children on dissolution of marriage), ch. 26.10 RCW (child custody and visitation), ch. 26.18 *166 RCW (child support enforcement), ch. 74.20 RCW (support of dependent children), ch. 74.20A RCW (same). Yet, inevitably, in the field of familial relations, factual scenarios arise, which even after a strict statutory analysis remain unresolved, leaving deserving parties without any appropriate remedy, often where demonstrated public policy is in favor of redress. See, e.g., Kaur v. Chawla,
¶ 12 And so we turn to the question before us: whether our state's common law recognizes de facto parents and, if so, what rights and obligations accompany such recognition.[5] 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. Accord In re Custody of H.S.H.-K.,
A
Common Law Parentage
¶ 13 Common Law: Carvin asserts that, because she lacks an adequate remedy at law, equity and the common law should accord her standing as a de facto parent. See Corr. Suppl. Br. of Resp't at 9, 11-12. Britain objects to the recognition of a common law right, asserting that such considerations are properly the province of our legislature. Pet. for Review at 18-19.
¶ 14 So long as it is consistent with Washington statutory law, Washington courts adopt and reform the common law.
The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state.
RCW 4.04.010. Early in our state's history, this court construed RCW 4.04.010 to mean that,
in the absence of governing statutory provisions, the courts will endeavor to administer justice according to the promptings of reason and common sense, which are the cardinal principles of the common law; but will not blindly follow the decisions of the English courts as to what is the common law without inquiry as to their reasoning and application to circumstances.
Bernot v. Morrison,
¶ 15 Washington courts have consistently invoked their equity powers and common law responsibility to respond to the needs of children and families in the face of changing realities. We have often done so in spite of legislative enactments that may have spoken to the area of law, but did so incompletely.[6] With these common law principles *167 in mind, we turn to whether Washington's common law recognizes de facto parents.
¶ 16 Washington's Recognition of Common Law Parentage: Carvin asks this court to affirm the Court of Appeals' holding recognizing a common law de facto parent status, asserting that the same is consistent with our jurisprudence and that severing such a parent-child relationship, regardless of its lack of statutory recognition, would be detrimental to the child. See Resp. to Pet. for Review at 7-8. Britain counters that because she is the biological mother of L.B. and there has been no finding that she is unfit, the law presumes she acts in the best interests of her child and the state should not interfere in her decisions, regardless of their impact on L.B. Pet. for Review at 11 (citing Troxel,
¶ 17 Washington courts have long recognized that individuals not biologically nor legally related to the children whom they "parent" may nevertheless be considered a child's "psychological parent."[7]See, e.g., In *168 re Welfare of Aschauer,
¶ 18 Two Court of Appeals cases support Carvin's claim that Washington's common law recognizes the status of de facto parents. Implicitly recognizing de facto parentage status, these courts have awarded custody to nonbiological "parents" over the objection of otherwise fit biological parents. In In re Marriage of Allen,
Where the reason for deferring to parental rights the goal of preserving families would be ill-served by maintaining parental custody, as where a child is integrated into the nonparent's family, the de facto family *169 relationship does not exist as to the natural parent and need not be supported. In such a case, custody might lie with a nonparent.
Id. at 648,
¶ 19 Division One reached a similar conclusion in In re Custody of Stell,
¶ 20 The cases of Allen and Stell support the proposition that Washington common law recognizes the significance of parent-child relationships that may otherwise lack statutory recognition.[8] In addition, both cases make clear that individuals may comprise a legally cognizable family through means other than biological or adoptive.
B
Legislative Pronouncements on Parentage
¶ 21 Our legislature has been conspicuously silent when it comes to the rights of children like L.B., who are born into nontraditional families, including any interests they may have in maintaining their relationships with the members of the family unit in which they are raised.[9] In assessing whether our common law may recognize such relationships as well as the extent of the rights accorded de facto parents,[10] if any, we consider the relevant legislative enactments concerning parentage, child custody, and visitation, for two critical purposes: (1) to discern legislative pronouncements of our state's public policy and (2) to determine whether there exists a clear legislative intent to *170 preempt the establishment of any common law rights in this context.[11]
¶ 22 Uniform Parentage Act: In 2000, Washington adopted the then-current version of the UPA to govern statutory determinations of parentage in our state. See LAWS OF 2002, ch. 302, codified at ch. 26.26 RCW.[12] Several sections of the UPA shed light on our state's public policy concerning disputes which touch on the rights and interests of children. Specifically, the legislature established that questions of parentage are to be considered without differentiation on the basis of the marital status or gender of the child's parent. See RCW 26.26.106 (prohibiting discrimination on basis of marital status and ensuring equivalent rights of children born outside the context of wedlock to those born within it); RCW 26.26.051 ("provisions relating to determination of paternity may be applied to a determination of maternity"). Additionally, the UPA establishes that at least in the case of artificial insemination, the intent of the parties is the principal inquiry in determining legal parentage. See generally RCW 26.26.700 .740 (emphasizing spousal consent).[13] While not directly controlling here, these related policy pronouncements inform our decision making regarding recognition of a common law right to de facto parentage.
¶ 23 In defining the scope of the act, the UPA provides that "[t]his chapter governs every determination of parentage in this state." RCW 26.26.021(1).[14] Nevertheless, while attempting to give structure and predictability to such determinations, neither the UPA nor corresponding statutes defining parental rights and responsibilities purport to preclude the operation of the common law when addressing situations left unanswered after conducting a strict statutory inquiry.[15]Cf. Dep't of Soc. & Health Servs.,
*171 ¶ 24 Child Custody: A study of Washington's common law confirms that, particularly in disputes touching on the rights and protection of minors, Washington courts have historically exercised broad equitable powers in considering cases regarding the welfare of children; this is especially evident in early custody disputes. In this context, in defining the scope of our courts' authority, we have previously established that
the superior courts of this state are courts of general jurisdiction and have power to hear and determine all matters legal and equitable in all proceedings known to the common law, except in so far as those have been expressly denied; that the jurisdiction of a court of equity over the persons, as well as the property, of infants has long been recognized; and that the right of the state to exercise guardianship over a child does not depend on a statute asserting that power.
In re Welfare of Hudson,
¶ 25 Prior to any statutory governance, Washington courts relied solely on their equity jurisdiction to determine custody disputes affecting children. See, e.g., Borenback v. Borenback,
[t]he principle that the welfare of the child is the paramount consideration has been recognized and followed by this court in many cases. The two principles, then, the welfare of the child and the right of the parent, must be considered together, the former being the more weighty.
In re Application of Day,
¶ 26 Visitation: The concept of visitation in Washington originated principally in the courts and has been developed by the judicial branch through the common law. Prior to 1973, visitation was often granted and enforced by the courts acting in equity despite lack of any apparent statutory authority to do so.[19] Although the legislature had previously addressed disputes concerning children, it had done so without addressing visitation rights. See former RCW 26.08.110 (1949) (providing statutory redress for the "custody, support and education of . . . minor children" but not visitation), repealed by LAWS OF 1973, 1st Ex.Sess., ch. 157, § 3.
¶ 27 In 1973, as part of the dissolution act of 1973 the legislature adopted a statutory presumption in favor of postdivorce parental visitation. See LAWS OF 1973, 1st Ex. Sess., ch. 157, § 24. Professor Luvern Rieke commented that this enactment merely "continu[ed] the generous policy of prior Washington law concerning visitation by a noncustodial spouse." Luvern V. Rieke, The Dissolution Act of 1973: From Status to Contract?, 49 WASH. L. REV. 375, 410 (1974). Thus, Washington's visitation scheme can be seen as largely a codification of common law jurisprudence, with no evidence that the enactment of statutes governing visitation was designed to preempt the court's equitable jurisdiction over circumstances not within the statute's contemplation.
¶ 28 Additionally, recognizing the inherently disruptive nature of dissolutions,[20] our legislature has attempted to lessen the emotional and psychological trauma experienced by children whose parents separate. To this end, the legislature endeavored to create a system that "encourage[s] each parent to maintain a loving, stable, and nurturing relationship with the child." RCW 26.09.187(3)(a). The legislature's apparent intent behind Washington's current visitation statutes reveals a strong presumption in favor of parental involvement, fostering and protecting a child's significant relationships.
The best interests of the child are served by a parenting arrangement that best maintains a child's emotional growth, health and stability, and physical care. *173 Further, the best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm.
RCW 26.09.002. To effectuate this policy, the law presumes that parents not granted custody[21] are entitled to reasonable visitation rights. RCW 26.10.160(1).
¶ 29 Thus, the history of Washington's visitation law evinces its common law foundation, a lack of legislative intent to preempt the common law, and equally important, its emphasis on the interests of the children at the center of such familial situations.
¶ 30 Summary of Legislative Enactments: A review of our state's jurisprudence in this area thus reveals the following: (1) our legislature's certain and unwavering emphasis on the "best interests of the child" and on a child-centered approach to resolving custody and visitation disputes, (2) the legislature's recent proclamation, supporting previous common law holdings, that the marital status of a child's parents shall have no bearing on the child's rights to a legally cognizable relationship with parents, see RCW 26.26.106; Kaur,
C
Recognition of Common Law De Facto Parentage
¶ 31 Persuasive Authority for De facto Parents: In recent years, numerous other jurisdictions have faced issues similar to those presented here, often in the face of a statutory scheme which failed to contemplate the scenario presented. As this remains a case of first impression in this state, a review of decisions of other jurisdictions is instructive. See, e.g., Eggleston v. Pierce County,
¶ 32 In 1995, the Wisconsin Supreme Court was presented with a situation factually analogous to the one presented here. See In re Custody of H.S.H.-K.,
¶ 33 The Wisconsin Supreme Court determined that under the Wisconsin statutory scheme, the biological mother's former female partner lacked standing to petition for custody or visitation. Id. at 657-58,
¶ 34 In spite of this determination, the court held that the legislature had not intended to preempt the equitable power of the court in domestic matters so as to preclude a remedy outside of the statutory scheme. Id. It then examined the history of that state's visitation law and the relevant legislative enactments to discern whether the statutory scheme was intended as the exclusive means of obtaining visitation rights and concluded that "[i]t is reasonable to infer that the legislature did not intend the visitation statutes to bar the courts from exercising their equitable power to order visitation in circumstances not included within the statutes but in conformity with the policy directions set forth in the statutes." Id. at 682-83, 693,
¶ 35 Again, with facts substantially identical to those present here, in 1999, the Massachusetts Supreme Judicial Court recognized the viability of the common law de facto parent doctrine. See E.N.O. v. L.M.M.,
¶ 36 Numerous other jurisdictions have recognized common law rights on behalf of *175 de facto parents. See, e.g., C.E.W. v. D.E.W.,
¶ 37 Conclusion: Our state's current statutory scheme reflects the unsurprising fact that statutes often fail to contemplate all potential scenarios which may arise in the ever changing and evolving notion of familial relations. Yet, simply because a statute fails to speak to a specific situation should not, and does not in our common law system, operate to preclude the availability of potential redress. This is especially true when the rights and interests of those least able to speak for themselves are concerned. We cannot read the legislature's pronouncements on this subject to preclude any potential redress to Carvin or L.B. In fact, to do so would be antagonistic to the clear legislative intent that permeates this field of law to effectuate the best interests of the child in the face of differing notions of family and to provide certain and needed economical and psychological support and nurturing to the children of our state. While the legislature may eventually choose to enact differing standards than those recognized here today, and to do so would be within its province, until that time, it is the duty of this court to "endeavor to administer justice according to the promptings of reason and common sense." Bernot,
¶ 38 Reason and common sense support recognizing the existence of de facto parents and according them the rights and responsibilities which attach to parents in this state. We adapt our common law today to fill the interstices that our current legislative enactment fails to cover in a manner consistent with our laws and stated legislative policy. As Justice O'Connor noted, "[t]he demographic changes of the past century make it difficult to speak of an average American family," Troxel,
¶ 39 Recognition of a de facto parent is supported primarily by our legislature's pronouncements on the subject, our courts historic common law role with respect to visitation, child custody, and support obligations, and is further buttressed by the prior Court of Appeals cases of In re Marriage of Allen and In re Custody of Stell and the persuasive reasoning of out-of-state cases. As such, the common law grants Carvin standing to prove she is a de facto parent and if so determined, to petition for the corresponding rights and obligations of parenthood.
¶ 40 To establish standing as a de facto parent we adopt the following criteria, delineated by the Wisconsin Supreme Court and set forth in the Court of Appeals opinion below: (1) the natural or legal parent consented to and fostered the parent-like relationship, (2) the petitioner and the child lived together in the same household, (3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature. See In re Parentage of L.B., 121 Wash.App. *177 at 487,
¶ 41 We thus hold that henceforth in Washington, a de facto parent stands in legal parity with an otherwise legal parent, whether biological, adoptive, or otherwise.[25]Cf. C.E.W.,
D
Fundamental Parental Liberty Interest
¶ 42 Britain asserts the recognition of Carvin as a de facto parent, and granting her rights akin to a biological or adoptive parent violates Britain's constitutionality protected liberty interest to care for and control her child without unwarranted state intervention, in contravention of United States Supreme Court precedent. See Prince v. Massachusetts,
¶ 43 It is well recognized that "[t]he liberty interest ... of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court." Troxel,
¶ 44 C.A.M.A. reaffirmed Smith's holding establishing strict scrutiny analysis as the appropriate analytic framework in reviewing the State's infringement on a parent's fundamental liberty interest. However, like Smith, C.A.M.A. dealt with the competing interests of biological parents and third parties, in both cases grandparents. No case has ever applied a strict scrutiny analysis in cases weighing the competing interests of two parents. Rather, in Washington, courts attempt to discern the best interests of the child. Given the now equivalent parental positions of the parties, no heightened scrutiny is warranted.
¶ 45 Significantly, our holding today regarding the common law status of de facto parents renders the crux of Britain's constitutional arguments moot. Britain's primary argument is that the State, through judicial action, cannot infringe on or materially interfere with her rights as a biological parent in favor of Carvin's rights as a nonparent third party. However, today we hold that our common law recognizes the status of de facto parents and places them in parity with biological and adoptive parents in our state. Thus, if, on remand, Carvin can establish standing as a de facto parent, Britain and Carvin would both have a "fundamental liberty interest[]" in the "care, custody, and control" of L.B. Troxel,
¶ 46 Additionally, contrary to Britain's assertions, Troxel does not establish that recognition of a de facto parentage right infringes on the liberty interests of a biological or adoptive parent. First, Troxel did not address the issue of state law determinations of "parents" and "families," rather simply disapproved of the grant of visitation in that case, narrowly holding that "[t]he problem... is not that the [trial court] intervened" but that, when it did so, "it gave no special weight at all" to the parents' determination regarding the grandparents' visitation. Troxel,
Even the Court would seem to agree that in many circumstances, it would be constitutionally permissible for a court to award some visitation of a child to a parent or previous caregiver in cases of parental separation or divorce, cases of disputed custody, cases involving temporary foster care or guardianship, and so forth.
Id. at 85,
*179 ¶ 47 Finally, in contrast to Britain's fears that "teachers, nannies, parents of best friends, ... adult siblings, aunts, [] grandparents," and every "third-party ... caregiver" will now become de facto parents, Pet. for Review at 12, 15, attaining such recognition should be no easy task. Critical to our constitutional analysis here, a threshold requirement for the status of the de facto parent is a showing that the legal parent "consented to and fostered" the parent-child relationship. See supra p. 177. The State is not interfering on behalf of a third party in an insular family unit but is enforcing the rights and obligations of parenthood that attach to de facto parents; a status that can be achieved only through the active encouragement of the biological or adoptive parent by affirmatively establishing a family unit with the de facto parent and child or children that accompany the family.[28] In sum, we find that the rights and responsibilities which we recognize as attaching to de facto parents do not infringe on the fundamental liberty interests of the other legal parent in the family unit.
¶ 48 Finding no constitutional infirmities in recognizing de facto parents, we accordingly affirm the Court of Appeals on this issue and remand to the trial court for a determination of whether Carvin is L.B.'s de facto parent and any further appropriate proceedings in accord with this opinion.[29]
E
Third Party Visitation
¶ 49 Carvin alternatively sought third party visitation pursuant to RCW 26.10.160(3). Our decision today, holding that Carvin has standing to petition for a determination of de facto parentage, may render this alternative argument moot. However, if she is unsuccessful in her petition for de facto parentage, our recent decision in In re Parentage of C.A.M.A makes clear that Washington's current third party visitation statutes are unconstitutional and inoperative and thus unavailable as an alternative ground on which to seek visitation.
¶ 50 Carvin concedes that this court, in In re Custody of Smith, held that RCW 26.10.160 was facially unconstitutional. Corr. Suppl. Br. of Resp't at 20. However, Carvin asserts that the United States Supreme Court's review of Smith in Troxel, which held that section .160(3) was unconstitutional only as applied in that case, essentially resurrected the third party visitation statute. Id. at 20-22 (asserting that "Troxel makes clear that RCW 26.10.160(3) does not necessarily offend due process"). However, since she made this argument, this court issued In re Parentage of C.A.M.A., which controls the result here.
¶ 51 At issue in C.A.M.A. was the constitutionality of the visitation provided under *180 RCW 26.09.240, which we held facially unconstitutional in violation of Smith. In doing so, the court reaffirmed the holding in Smith.
... Smith required that a grandparent (or other third party seeking visitation) must show that denial of visitation would result in harm to the child before a court could order visitation over the objections of a fit parent. "It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a `better' decision [than the parent]."
C.A.M.A.,
¶ 52 In applying RCW 26.10.160(3), the Court of Appeals in this case discussed only the Troxel case and performed no analysis of this court's holding in Smith. While simply following Troxel's narrower holding, Smith's invalidation may have been debatable, following this court's holding in C.A.M.A., it is clear that Washington's third party visitation statutes, RCW 26.09.240 and RCW 26.10.160(3), are facially unconstitutional. The effect of holding a statute facially unconstitutional "is to render the statute totally inoperative." City of Redmond v. Moore,
III
Conclusion
¶ 53 We affirm in part and reverse in part the Court of Appeals and remand this case to the superior court for further proceedings consistent with this opinion.
WE CONCUR: ALEXANDER, C.J., C. JOHNSON, MADSEN, CHAMBERS, OWENS, FAIRHURST, JJ.
J.M. JOHNSON, J. (dissenting).
¶ 54 I disagree with the majority's resolution of this case and am saddened by the impact caused by this judicial rewrite of our parentage laws on this child poor little L.B. At the outset, I note that the sexual orientation history of the parties in this case should be irrelevant under the straightforward analysis the statute and constitution require.[1] Regardless of the various sexual orientation claims, the outcome must be that a mother has a fundamental right to make decisions for her child. The Washington Uniform Parentage Act (UPA), chapter 26.26 RCW, requires the same analysis and conclusion as do the state and federal constitutions: L.B.'s mother, Page Britain, is fit (no contrary allegation has been made), and therefore the courts must presume that she acts in her child's best interests.
¶ 55 Under the majority's holding, the parties in this case will return to the trial court for a determination of whether Sue Ellen ("Mian") Carvin, the claimant, is a "de facto" parent even though she is not a parent under any reading of our constitution or statute.[2] If or when the court below decides she is a "de facto" parent, Carvin will magically *181 obtain the fundamental rights of a parent rights equal to those of L.B.'s biological and legal mother, Britain. Unfortunately, the court will then likely divide custody on some unspecified basis.
¶ 56 This outcome is unconstitutional and in derogation of rights of the mother because it interferes with an admittedly fit parent's fundamental right to make child rearing decisions. See Troxel v. Granville,
¶ 57 It will be shown below that this "de facto" claimant meets none of the qualifications of a parent under the UPA. Further indicative of Carvin's motives here, her counsel admitted at argument that Carvin has not contributed to L.B.'s support since this litigation began. Wash. State Supreme Court 17:34, 18:32 (Feb. 15, 2005), audio recording by TVW, Washington State's Public Affairs Network, available at http://www.tvw.org. Instead of helping support L.B., she has chosen to engage in protracted litigation that is costly, financially and emotionally undoubtedly causing agonizing stress on little L.B., who has become a battleground for this interpersonal and political debate.[3]
¶ 58 The majority purports to dispose of the constitutional issue raised in Troxel and Smith by waving a magic wand and creating "de facto" parents: "[o]ur common law recognition of another class of `parents' eradicates the parent/nonparent dichotomy that was the crux of both the Smith and Troxel opinions." Majority at 179. However, it is this court's creation of this new class of parents that is the constitutional violation (and the court has no power to "eradicate the parent/nonparent dichotomy" which has existed as long as there have been families). In this case there is a real, fit, actual, biological parent whose fundamental interest in the care, custody, and raising of her child is infringed by the majority's elevating of a nonparent to "de facto" parental status.
¶ 59 This is a constitutional matter. The United States Supreme Court found in Troxel that the Washington trial court had erred when it failed to apply the constitutionally required presumption that a fit parent acts in the child's best interests (and thus failed to require proof that the parent was unfit before making a custody determination against the parent's wishes). Troxel,
¶ 60 Here, the majority errs, as the Washington statute and trial court did in Troxel, by allowing a court to assume that it is in a child's interests to continue a relationship with a nonparent over objection of the legitimate parent. Second, the majority's ruling fails to provide any protection for Britain's fundamental constitutional right as a fit mother to make decisions concerning the upbringing of her own daughter.
¶ 61 Worse, in my view, the majority here looks beyond a detailed and complete statutory scheme adopted by the Washington legislature and creates by judicial decree a new method for determining parentage. The UPA, adopted by many states, is avowedly intended to provide the exclusive remedy for determining parentage as it "governs every determination of parentage in this state." RCW 26.26.021(1).
*182 ¶ 62 An unambiguous statute is not subject to judicial construction. Wash. State Coalition for the Homeless v. Dep't of Soc. & Health Servs.,
¶ 63 Here, the UPA unambiguously defines a "parent." A parent is "an individual who has established a parent-child relationship under RCW 26.26.101." RCW 26.26.011(12). A mother-child relationship is established in five situations: (1) when a woman gives birth to a child, (2) through an adjudication of maternity, (3) through adoption, (4) by a surrogate parentage contract, or (5) by an affidavit and physician's certificate stating a person's intent to be bound as a parent of a child born through alternative reproductive medical technology. RCW 26.26.101.[5]
¶ 64 Britain qualifies under RCW 26.26.101(1)(a) incorporating the preexisting definition of parent as she is the birth mother of L.B.[6] Carvin does not qualify under any section.[7] This should end the analysis.
¶ 65 The statute does contemplate various other ways in which a person may establish a true parent relationship. Absent from these definitions of parent, which the legislature intended as exclusive, is any mention of a "de facto" parent or any provision that Carvin fits.
¶ 66 The statute's extensive detail and forethought is evidence that the legislature included relationships that it intended to include and excluded all other relationships. The statute is complete and legislatively intended as exclusive. Nowhere in the text of the UPA or other chapters of the RCW is the term "de facto parent" or "psychological parent" mentioned.
¶ 67 The majority improperly concludes that the legislature's failure to speak is somehow an invitation for this court to add further definitions or provisions to a statute that is clear, unambiguous, and all encompassing.[8] The majority's conclusion is wrong on the *183 facts and violates our long-standing rules of statutory construction.
¶ 68 That the legislature neither intended a "de facto" parent nor intended the courts to provide such cause of action is evidenced by the legislative determination not to create such a status or cause of action following the Court of Appeals decision in State ex rel. D.R.M. v. Wood,
¶ 69 The legislature chose not to amend the UPA and not to create a "de facto" parent. The legislature has spoken. "When the legislature has assumed to speak upon a given subject, courts must take its expression as it is, and if it be certain in its terms, there is no reason for speculation as to its reasons, nor warrant for adding anything to meet a given case." In re Estate of Adler,
¶ 70 I also find the majority's decision in this case inconsistent with another recent case. This court declined to reach the issue of "de facto" parentage, although the petitioner argued the issue in her supplemental brief, in the case of In re Custody of Brown,
¶ 71 Luby's claim is far better than Carvin's in many respects. L.B. never lived separately with Carvin. Moreover, the record is unclear regarding Carvin's contributions to the financial support of L.B.; she admitted no contribution in the years since the litigation commenced. Wash. State Supreme Court 17:34, 18:32 (Feb. 15, 2005), audio recording by TVW, Washington State's Public Affairs Network, available at http://www.tvw.org.
¶ 72 Luby's story was less persuasive in other respects she had been arrested and pleaded guilty to drug charges (marijuana). Brown,
¶ 73 Also unfortunate in this case is the majority's usurpation of the legislature's role in government. The majority claims that "Washington courts have not hesitated to exercise their common law equitable powers to award custody of minor children." Majority at 172. However, to do so in this case was improper as the majority goes against the express intent of the legislature. See infra pp. 163-165.
¶ 74 Previously, this court has properly declined to look beyond the statutory enactments of the parentage act to create the interests of a "psychological parent." See In re Dependency of J.H.,
¶ 75 The court properly decided not to act as a legislature in In re Dependency of J.H., but unfortunately today the same restraint is not shown. This court should have continued to follow the long precedent and declined to usurp the legislature's role.
¶ 76 The majority wishes to act with the wisdom of Solomon in not only implementing but making the law in this sensitive family law area. Solomon's famous case with two women claiming the same baby had a different point, however, badly misapprehended by the majority. Solomon threatened to cut the baby in half in order to determine the real mother, to whom he restored full custody. 1 Kings 3:16-28. The court today holds an actual division more wise and sends the case and the child to lower courts for that division. Poor little L.B.
¶ 77 I dissent.
SANDERS, J., concurs.
NOTES
[1] Carvin alleges that she, Britain, and Auseth all signed notarized documents agreeing that Carvin and Britain would be the parents of the child and that Auseth would have no involvement. While these documents are not part of the record, Britain admits to their existence but claims she is unaware of their whereabouts and has no recollection of their contents.
[2] While the parties continue to dispute various aspects of the nature of their relationship prior to and after the birth of L.B. and the role Carvin played in L.B.'s life, we are not charged with resolving any factual disputes. See, e.g., State v. Valentine,
[3] Shortly thereafter, in a strange twist of events, and admittedly in response to Carvin's initiation of legal action, Britain and Auseth, the sperm donor, married. CP at 91-92, 193-98. Auseth signed a paternity affidavit and the parties requested an amended birth certificate for L.B., listing Auseth as the "father." Id. Auseth, however, is not a party to this action, and his whereabouts are unknown.
[4] During the pendency of our review, L.B.'s guardian ad litem (GAL) has apparently filed GAL reports in the trial court. Carvin and the GAL jointly moved to file these reports and corresponding court orders and to have them supplement the record and be considered on review. This motion was passed to the merits.
RAP 9.11 governs the admission of additional evidence on review. Carvin rightfully concedes that the GAL reports fail to meet the six criteria set forth under RAP 9.11 but asserts that we can and should waive this requirement in the interests of justice. However, the admission of new factual evidence is unnecessary for purposes of our review. The court here decides two purely legal issues neither of which is substantially furthered by waiving our rules to accept additional evidence. As such, we deny Carvin and the GAL's motion to file the GAL reports and trial court orders.
[5] While Carvin petitioned the trial court for a determination of parentage pursuant to the UPA, the trial court and Court of Appeals rejected that claim, and Carvin has not sought review of that decision here. The UPA undeniably provides a statutory, and the most common, avenue by which courts adjudicate a person a parent in this state. While the UPA made some strides to address changing avenues to parentage, see, e.g., RCW 26.26.210 .260 (surrogate parenting); RCW 26.26.700 .740 (assisted reproduction), it inevitably did not contemplate nor address every conceivable family constellation and in this court the parties agree that our statutory parentage determinations, under the UPA, fail to directly address this dispute.
[6] Washington courts have often used their equitable powers within the province of familial relationships and expanded the common law accordingly to address the changing needs of families. See, e.g., Connell v. Francisco,
[7] Our cases, and cases from other jurisdictions, interchangeably and inconsistently apply the related yet distinct terms of in loco parentis, psychological parent, and de facto parent. Reflecting this confusion, Carvin has sought recognition of her status as a de facto or psychological parent. Opening Br. of Appellant at 1. For purposes of our review, we adopt the following general definitions:
In loco parentis: Latin for "`in the place of a parent,'" this term is temporary by definition and ceases on withdrawal of consent by the legal parent or parents. BLACK'S LAW DICTIONARY 803 (8th ed.2004). While some legal responsibility often attaches to such a relationship, Washington courts and statutes have never considered the same actual parents or akin to actual parents. See also In re Custody of Brown,
Psychological parent: Psychological parent is a term created primarily by social scientists but commonly used in legal opinions and commentaries to describe a parent-like relationship which is "based . . . on [the] day-to-day interaction, companionship, and shared experiences" of the child and adult. JOSEPH GOLDSTEIN, ANNA FREUD, ALBERT J. SOLNIT, BEYOND THE BEST INTERESTS OF THE CHILD 19 (1973). As such, it may define a biological parent, stepparent, or other person unrelated to the child. See also BLACK'S, supra, at 1145 ("A person who, on a continuing and regular basis, provides for a child's emotional and physical needs."). In Washington, psychological parents may have claims and standing above other third parties, but those interests typically yield in the face of the rights and interests of a child's legal parents. See, e.g., In re Dependency of J.H.,
De facto parent: Literally meaning "parent in fact," it is juxtaposed with a legally recognized parent. BLACK'S, supra, at 448 (defining de facto as "[a]ctual; existing in fact; having effect even though not formally or legally recognized"). We are asked in this case to define the parameters of this term and in doing so, find that it describes an individual who, in all respects functions as a child's actual parent, meeting the criteria suggested herein. See infra pp. 177-178.
[8] Interestingly, in 1926, this court, in a two paragraph opinion, affirmed a trial court's refusal of a biological father's writ of habeas corpus to recover custody of his daughter who had been in the custody of the child's aunt for eight years. In re Application of Allen,
Notes
[9] This statutory silence regarding the interests of children begotten by artificial insemination, and the rights and responsibilities of adults in such parenting arrangements, is not unique to Washington. See Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 WASH. L. REV. 1035, 1036-37 (2002) (despite a long process of legalization and legitimization, the technology of artificial insemination, and the prevailing concept of socio-legal institute of family remains incompatible, leaving many legal issues largely unresolved and indeterminate).
The dissent believes the Washington legislature's silence on the question before us today is purposeful, based on language in State ex rel. D.R.M. v. Wood,
[10] While the legal and social interests of children and parents are often interrelated, much of our statutory scheme remains distinctively adult-centric and as the litigation here was brought, and principally furthered, by the involved adults, much of our discussion necessarily centers on the interests, rights, and responsibilities of the litigant adults. Nevertheless, as established by our legislature, "the best interests of the child" pervades our judicial consciousness in this field.
[11] Whether a statutory enactment acts to preempt or diminish common law rights is determined by legislative intent, see cf. Roberts v. Dudley,
[12] As noted above, the parties here do not contend that Carvin has standing under the UPA.
[13] See also Lainie M.C. Dillon, Conundrums with Penumbras: The Right to Privacy Encompasses Non-Gamete Providers Who Create Preembryos With the Intent to Become Parents, 78 WASH. L. REV. 625, 641-42 (2003) ("The UPA declares that in the context of assisted reproduction, intent, not biology, is determinative of one's legal status as a parent.").
[14] None of the parties or amicus addresses the effect of RCW 26.26.021(1) in this context, that is, whether it operates to preclude common law determinations of parentage.
[15] The current statutory formation is wrought with "unavoidable tension in the law's objectives and . . . design." AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS [hereinafter ALI PRINCIPLES] 1-4 (2002) (noting conflicting goals of "[p]redictability vs. individualized decisionmaking," "[f]inality vs. flexibility," and "[j]udicial supervision vs. private ordering" (emphasis omitted)).
[16] See Dep't of Ecology v. Campbell & Gwinn, L.L.C.,
[17] Cf. Connell,
[18] It is well recognized, both in Washington and nationally, that child custody and visitation orders may be established by reliance on courts' equity powers and the common law. See 2 HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES § 20.3, at 484 (2d ed.1987) (noting "equity has inherent power to award custody," and as such "custody awards may be made regardless of statutory language" provided jurisdiction exists); see also id. § 20.9, at 547 (same principles apply to modifications). This fact is exemplified in Washington, and elsewhere, by the historic availability of the common law writ of habeas corpus in child custody proceedings. See, e.g., In re Application of Day,
[19] See, e.g., Rivard v. Rivard,
[20] We recognize that this case does not involve a dissolution as contemplated by Washington statutes. However, these enactments reflect both the common law nature of the field of law and the legislature's primary focus on the interests of the child.
[21] Although we use the term "custody" in this opinion, we recognize the legislature has largely abandoned it in favor of defining relative levels of residency. See generally RCW 26.09.184.
[22] While not contested here, it is evident that child support obligations, while now addressed by statutes, continue to be additionally addressed through the common law and its adaptations. See, e.g., Kaur,
[23] See also ALI PRINCIPLES 128-30 (Reporter's Notes) (citing cases where courts have similarly held under a variety of equitable doctrines). While a majority of states that have addressed this issue have recognized some common law rights, there is a split of authority and some other jurisdictions have held that any potential common law rights of de facto parents are precluded by that particular state's relevant statutory scheme or constitution. See, e.g., In re Nelson,
In addition, California recently reversed course and held, in three separate supreme court cases, that the UPA may grant and impose parental rights and responsibilities to women with regard to children born to their partners in a lesbian relationship. See Elisa B. v. Superior Court,
[24] In addition, the American Law Institute's recent recommendation supports the modern common law trend of recognizing the status of de facto parents. See ALI PRINCIPLES §§ 2.01-2.04, 2.18. The ALI Principles support the establishment of both "parent-by-estoppel" and "de facto parent." Relevant here, according to the ALI's recommendations, "parent-by-estoppel" would include an "[i]ndividual who is a co-parent since the child's birth, pursuant to a co-parenting agreement with the legal parent(s)." Id. § 2.03, at 114 (emphasis omitted) ("contemplat[ing] the situation of two cohabitating adults who undertake to raise a child together, with equal rights and responsibilities as parents"). Under slightly different standards than that which we adopt today, the principles support recognition of de facto parents. Id. § 2.03, at 107-08 (defining as individuals who lived with the child for not less than two years and with the agreement of a legal parent performed caretaking functions equal to or greater than the legal parent). Finally, the principles then recommend an allocation of parental responsibilities to "parent[s] by estoppel" and "de facto parent[s]." Id. § 2.18, at 385.
[25] Cf. ALI PRINCIPLES § 2.03, at 107 (under principles' formulation "a parent is either a legal parent, a parent by estoppel, or a de facto parent"). While not "legal parents," parents by estoppel and de facto parents provide exceptions to the traditional rule, allowing them to participate in custody and other disputes. Id. § 2.04, at 136, cmt. d; § 2.18.
[26] "The criteria for determining the best interests of the child are varied and highly dependent on the facts and circumstances of the case at hand. Yet continuity of established relationships is a key consideration." McDaniels v. Carlson,
[27] Carvin and amicus in this case persuasively argue that Carvin and L.B., in addition to Britain, have constitutionally protected rights to maintain their parent-child relationship. See Amicus Br. of American Civil Liberties Union at 3-4. However, our resolution of the central issue here, granting de facto parental standing to Carvin, renders these additional constitutional concerns moot.
[28] As the Massachusetts Supreme Judicial Court has stated, "[t]he child's interest in maintaining [his or her] filial ties with the plaintiff counters the defendant's custodial interests." E.N.O.,
[29] Amicus in this case have argued that, like Britain and Carvin, L.B. also has constitutionally protected interests at stake in this case. Particularly relevant, amicus curiae the Justice for Children Project advocates on behalf of L.B. for appointment of independent counsel. Because no party to this dispute, Britain, Carvin, nor L.B., through her GAL, has raised or otherwise addressed this issue at any stage in the proceeding, we decline to consider the issue of whether appointment of counsel is in fact constitutionally mandated. See RAP 13.7(b). That being said, we strongly urge trial courts in this and similar cases to consider the interests of children in dependency, parentage, visitation, custody, and support proceedings, and whether appointing counsel, in addition to and separate from the appointment of a GAL, to act on their behalf and represent their interests would be appropriate and in the interests of justice. Cf. RCW 13.34.100(6); RCW 26.09.110; KING COUNTY LOCAL FAMILY LAW RULE 13. When adjudicating the "best interests of the child," we must in fact remain centrally focused on those whose interests with which we are concerned, recognizing that not only are they often the most vulnerable, but also powerless and voiceless. We, however, reserve for another day the underlying question raised by amicus of whether the United States or Washington Constitution mandate appointment of counsel in a given circumstance. But see Kenny A. ex rel. Winn v. Perdue,
[1] I note this because the Court of Appeals' decision is wrought with references to sexual orientation of mother, father, and claimant that are irrelevant and only serve to obfuscate the determinative issue: who is the child's mother? See In re Parentage of L.B.,
[2] The father, John Auseth, later married Britain, signed an acknowledgment of paternity, and added his name to L.B.'s birth certificate. Clerk's Papers (CP) at 198. The Court of Appeals remanded the case and directed the trial court to determine whether the father is a necessary party. It seems obvious the father would be a necessary party as Carvin's action also intrudes on his rights. The majority's disposition of this problem is unclear.
[3] The litigation costs, including those of six separate amici, would be better placed in trust for little L.B., who will no doubt sorely need such help later in life.
[4] Similarly, the subsequently adopted "grandparents visitation statute" was held unconstitutional in In re Parentage of C.A.M.A.
[5] "(1) The mother-child relationship is established between a child and a woman by:
"(a) The woman's having given birth to the child, except as otherwise provided in RCW 26.26.210 through 26.26.260;
"(b) An adjudication of the woman's maternity;
"(c) Adoption of the child by the woman;
"(d) A valid surrogate parentage contract, under which the mother is an intended parent of the child, as provided in RCW 26.26.210 through 26.26.260; or
"(e) An affidavit and physician's certificate in a form prescribed by the department of health wherein the donor of ovum or surrogate gestation carrier sets forth her intent to be legally bound as the parent of a child or children born through alternative reproductive medical technology by filing the affidavit and physician's certificate with the registrar of vital statistics within ten days after the date of the child's birth pursuant to RCW 26.26.735.
"(2) The father-child relationship is established between a child and a man by:
"(a) An unrebutted presumption of the man's paternity of the child under RCW 26.26.116;
"(b) The man's having signed an acknowledgment of paternity under RCW 26.26.300 through 26.26.375, unless the acknowledgment has been rescinded or successfully challenged;
"(c) An adjudication of the man's paternity;
"(d) Adoption of the child by the man;
"(e) The man's having consented to assisted reproduction by his wife under RCW 26.26.700 through 26.26.730 that resulted in the birth of the child; or
"(f) A valid surrogate parentage contract, under which the father is an intended parent of the child, as provided in RCW 26.26.210 through 26.26.260." RCW 26.26.101.
[6] Indeed I, like the statute, prefer the (unqualified) term "mother," and would not normally have to add "birth" were it not for the unfortunate context of decisions such as the majority.
[7] Note, however, there may have been earlier times when she arguably could have complied, e.g., by adoption if L.B.'s mother agreed.
[8] The Court of Appeals directly and improperly concluded that the legislature invited the courts to make the law in this area. See In re Parentage of L.B.,