Moreau v. Sylvester, Sylvester v. Moreau

31VT Sylvester Christopher Moreau v. Noel Sylvester Christopher Moreau Noel

[95 416] A.3d Nos. 12-152 & 12-154 Reiber, C.J., Dooley, Skoglund, Burgess Robinson, JJ. Present:

Opinion April Filed Adler, D. of Axelrod & A. Adler and Daniel McCabe Steven (12-152) PLLC, and Defend- Johnsbury, Plaintiff-Appellant St. (12-154). ant-Appellant (12-152) Se, Morrisville, Pro Sylvester, Defendant-Appellee

Noel (12-154). Plaintiff-Appellee ¶ Burgess, In appeal J. this consolidated defendant Christo- Washington family Moreau contests the court’s dismissal pher emergency petition parentage complaint his for child and biological over children with whom he shares no other estab- connection, family lished as well as the Caledonia court’s (RFA) order him visitation denying issuance of relief-from-abuse that he is the with the children.1 Defendant contends children’s de custody, facto and entitled to assert and be heard on affirm. rights. disagree and visitation We ¶ 2. is from of fact following background findings The drawn court at the final RFA order made Caledonia Plaintiff and defendant were in an hearing. on-again-off-again Plaintiff is eight years; they for to ten never married. children, the mother of two born 2003 and 2006. Defendant Nevertheless, he played not the father of either child. role in both of the children’s lives. significant, father-figure 2009, they separated February and defendant Although plaintiff responsibility for for the ongoing arrangement had an shared For the children lived with defendant for a example, children. 2012-154, defendant-appellant 1 Although in docket he is the Mr. Moreau is the clarity, plaintiff-appellant Mr. Moreau will in docket 2012-152. For sake be to as defendant hereinafter. referred of time in 2011 when

period May flooding plaintiffs rendered During periods residence uninhabitable. of care assigned defendant, he unwilling was sometimes return the children to mother, plaintiff their testified credibly this created dangerous situation on at least occasion. one giving 3. The incidents rise to the on present appeals occurred 5, 7, March parties’ rapport had deteriorated in preceding days, and the plaintiff children were with 5, home she shared with her new partner. On March defendant plaintiff sent a text at 8:05 “I message p.m. stating promise you, life, my the rest of I will find my girls and I will never stop, ever.”

¶ 4. In early hours of March defendant and a friend drove to the new partner’s place employment to confirm he was job at plaintiffs his and not at residence. Defendant and his friend home, then drove to plaintiffs arriving approximately a.m. They proceeded to knock on plaintiffs door for at least ten minutes. Defendant claimed that he did this out of concern for the children. Plaintiff was at home with her children without a vehicle or a cell phone she believed to be Plaintiff operable. was also aware defendant owned a gun. later, 5. Twenty-four hours on March defendant and his

friend again drove to the new partner’s place employment verify he was not at plaintiffs residence. Defendant and his friend plaintiffs a.m., arrived at at 2 home and defendant directed his bang plaintiffs friend to on door. joined Defendant then his friend together they banged on the door until police arrived. Defendant claimed that the purpose of the visit was to drop off some of the children’s belongings they so could have them for school. gave Defendant these belongings police officers who placed them in plaintiffs possession. Defendant was then served order, with a temporary RFA which plaintiff had obtained day before. 6. At the final RFA on hearing April the trial court

concluded that defendant had placed plaintiff and her children imminent fear of serious harm. physical The trial court issued RFA prohibiting order defendant from contacting or interacting with plaintiff as well as the children for year, noting one is not their “[defendant father.” Defendant this appeals order in docket 2012-154.

¶ Meanwhile, evidently hearing the final RFA before in Washington defendant filed plaintiff, unbeknownst com- parentage for visitation and emergency petition court an chil- legal custody plaintiffs seeking physical sole plaint 24, 2012 April trial court dismissed both actions on dren. The in any way. is not related to the children because defendant this dismissal docket 2012-152. appeals Defendant requests evidentiary defendant a remand for appeal, On plaintiffs he is a de facto findings whether and, so, if whether visitation is in the children’s best children (1) argues Defendant that: we should the best- apply interest. principle custody contained interest-of-the-children Vermont “to create enforceable visitation between children and de statutes (2) facto should reexamine our in Titchenal parents”; reasoning we Dexter, 373, (1997), denying equitable v. 166 Vt. 693 A.2d 682 asserting relief to de facto because persons “changing necessitate a modernized demographics interpretation Vermont (3) law”; past, this has interpreted Court existing expand custody statutes and the Vermont Constitution to Plaintiff, herself, marriage laws.2 did not representing file responsive brief.

I. ¶ 9. on the background development parental rights Some Vermont, and visitation law in especially outside the context of children, proceedings persons divorce not related blood to In Legislature will assist the reader. 1984 the enacted the Act, Parentage Proceedings giving putative right, fathers law, denied at common to establish and thus paternity pursue §§ or custody visitation. 15 V.S.A. 301-306. 1985, §§ 10. In recognized Court 15 V.S.A. 291 and empowered courts to award to still-married steppar- desertion,

ents in cases of nonsupport, living separately. (1985). 83, 85, 146 Vt. 499 A.2d 25-26 Paquette Paquette, Defendant also contends the Common Benefits Clause of the Vermont Const, I, supports Constitution his de facto claim. Vt. ch. art. 7. argument appeal Defendant raises this for the first time on and thus failed to Mullestein, preserve it for review. See In re (1987) (declining appellant’s argument to consider state constitutional “it was when court, upon not the trial nor was that court’s it. raised before decision based presented appeal.”). will not be on Issues below considered 652, § acknowledged also that former 15 V.S.A. Paquette Court marriage” for “child of the custody guidelines which set forth to step- in divorce allowed courts to award proceedings, only showing “by in loco but a parents standing parentis, upon unfit or convincing parent clear and evidence that the natural is extraordinary circumstances exist to warrant such custodial order, 86, that it is in the best interests of the child.” Id. at 92, 26, 499 A.2d at later, Eight years interpreted provisions we two Ver- statute, 448, §§ 431 and then-existing adoption

mont’s V.S.A. to unmarried, an adoption by partner allow same-sex the child’s to having birth mother without terminate the natural mother’s B.L.V.B., 368, 369-70, 1271, parental rights. In re 160 Vt. 628 A.2d (1993). 1272-73 an adoption by statute authorized unmarried but, “person,” literally, required terminating read the “natural” in parent’s rights adopting person’s parental rights, favor of the except when the to adopting person stepparent was married 370-71, that, natural parent. Id. 628 A.2d at 1273. explained We by “allowing adoptions step-parent same-sex to come within the §448, exception of we are furthering purposes the statute originally by as was intended the children of such unions allowing security the benefits and of a de facto relationship their Thus, parents.”3 second Id. at 628 A.2d at 1276. our holding unnecessary” corrected “unreasonable and of the application statute that an adoption would thwart in the child’s best interests aby person qualified adopt, otherwise but for her partnership with the Id. at mother. 628 A.2d at 1272. In 1996 the exemplary “look[ing] beyond” The dissent cites B.L.V.B. as the text of a legislative policy Post, statute to further to serve the best interests of children. turn, however, undisputed 58. B.L.V.B. did not on the best interests of the child alone, primarily adopt but rather on our refusal to the “unreasonable and irrational terminating adoption by result” of of a fit natural to allow her — partner Legislature. fit a result not intended 160 Vt. at omitted). Here, (quotation B.L.V.B., parties at 1274 in stark contrast do not custody, parent opposes request parental want to share the natural defendant’s for recognition, it not established that the children’s best lie with interests — defendant, per standing and the se denial of to defendant who is not a natural, biological, adoptive, adoptive, parent or even would-be to allow him to facially interfere with the mother’s over her children is Moreover, B.L.V.B., partner ridiculous. contrast the situation in where the statutory standing petition adoption place, enjoys had for in the first defendant parent” necessary standing adoption no status as a “natural absent an 302(a). adjudication. previous parentage § 15 V.S.A. holding Adoption confirmed the the new Legislature B.L.V.B. Act, 8-101, §§ unit 15A providing “[i]f V.S.A. 1-101— adoption of a and the is in parent’s partner, consists child, parent may adopt partner the best interest without his or her parent” terminating a child of 1402(b). § rights. facto concept 12. The of de was revisited Titchenal Dexter, (1997), 693 A.2d 682 the case is the appeal

focus of defendant’s here. Titchenal involved two women jointly participated raising adopted who a child only parties’ one of them. The by relationship disintegrated, mother would not allow contact adoptive plaintiff with the Lacking statutory provision petition child. under which she could court, the family plaintiff complaint requesting filed civil court4 to exercise its to general equitable power establish contact. for complaint The was dismissed lack of 375-76, at jurisdiction. appeal, Id. 693 A.2d at 683. On the plaintiff family this Court “to ‘nontraditional’ urged grant members access by to the courts of facto recognizing legal rights parents” de — persons those who share a bond with a child but no otherwise connection, legally cognizable through biology, marriage, either 376, n.l, 683-84, statute or court order. See id. at 376 693 A.2d at n.l (explaining parent” person “de facto as a with psychologi- child, cal bond to “in parentis” and doctrine of loco as entailing emotional and financial support, and that of this purposes “[f]or we see no need to opinion, draw fine lines between the doctrines. Plaintiffs is that point though legal she is not the of [the child], in all other respects parent.”). she has acted as the child’s precise 13. The issue addressed in Titchenal was whether equity provided adjudicate an avenue for the civil court to visitation within jurisdiction claims the then-exclusive of the family court, of incapable being brought family but court under 375, at Vermont statutes. 693 A.2d at 683. The Titchenal plaintiff posited that court family jurisdiction retained to adjudicate parent-child disputes contact capable being brought statutory in a proceeding, equitable the civil court had powers adjudicate disputes not involving parties recognized by 4 Following court unification there is one court includes the superior designated and civil now as the courts, division family previous respectively §§ and civil division. 4 V.S.A. 33. 1, 31, — claims de facto We brought parents.

statute such as plaintiffs proposal” “no basis for because “[c]ourts found jurisdiction first have equitable powers they cannot exert unless subject Equity generally over the matter and . . . has no parties. jurisdiction imperfect rights arising over from moral rather than every injustice is actionable in legal obligations; perceived equity only violating recognized legal right.” those Id. at at 684.5 Post-Titchenal, third-party rights child visitation reached (2000). Granville, Supreme the U.S. Court Troxel 530 U.S. 57 that, Court held Supreme despite “changing realities family,” Washington the American State statute allowing “[a]ny person” petition for child-visitation “at time” was and an impermissibly infringement overbroad unconstitutional the fundamental to rear upon their children. Id. 60, 64, . . . the Declining precise scope “define context,” due in the visitation process right the Court left open possibility third-party child-visitation statutes but “any cautioned that standard for visitation awarding turns on the specific manner in which that applied standard is . . . the constitutional protections this area are best elaborated omitted); (quotation care.” Id. at 73 see also v. Conley, Glidden ¶¶ 19-21, VT Vt. 820 A.2d 197 (evaluating constitutionality of grandparent Vermont’s visitation law in light Troxel and construing preclude statute court interference with parent’s fit presumptively right valid to restrict grandparent visitation).

¶ Nonbiological 15. last in parentage was addressed Miller- Miller-Jenkins, 78, 441, 951, Jenkins 2006 VT justices Notably, majority two in dissented Titchenal. The discord between the regarding jurisdictional and dissent was not facto de as a basis supported embracing neither a side such rule. The dissent was in favor of and applying find, “equitable-adoption” concept, which would a “allow court to in retrospect, adopt by person formally so, an intent to who had never done for the purpose achieving just (Morse, J., result.” 166 Vt. at 693 A.2d at 691 any event, dissenting). concept proposed cases, In the as was to limited like in Titchenal, party allegedly adopt “in which a failed to because it not a was legal option. who, holding apply only [T]he reasonable . . . would to those like plaintiff, allegedly adopt prior statutory changes failed to to the 1996 in the law,” adoption recognized right adopt which the of nonmarried cohabitants to l-102(a). 692; together. § children Id. at 693 A.2d at 15A V.S.A. Defendant here falls outside of such circumstance. in a partner the of the birth mother rejected argument where we no partner parental rights union that the other had former civil through mutually-agreed-upon to the union their a child born relied, in biological parent part, upon artificial insemination. The 308(4) § that a married 15 V.S.A. rebutting presumption during marriage. of a child born parent is the natural person ¶78, to civil unions because presumption applied 2006 VT 42. The union entitled to all of the statutorily to a civil are parties either respect of married child whom rights couples 1204(f); § id. is the natural 15 V.S.A. see also partner parent. 1204(d) (“The annulment, relations, including § law of domestic divorce, child and separation support, property union.”). to a civil apply parties division and maintenance shall ¶ 308(4) however, concluded, § presumption 16. We exclusively support, presump- related to child neither the rights tion nor its rebuttal was relevant to “the through part- children born artificial insemination or to same-sex ¶ Miller-Jenkins, Instead, ners.” 2006 VT 44. the case was nonbiological more akin to insofar as the same-sex Paquette, was vested with “at least the status of a partner stepparent” ¶¶ 1204(d) (f).” § “by within her civil union virtue of Id. 47. Paquette, Unlike we concluded Miller-Jenkins nonbiological parent qualified equal footing second as on with the mother.

¶ Moreover, the entire rationale behind Miller-Jenkins was to address the of civil union partners express context ¶¶44, of their artificial jointly intended insemination. Id. 48-52. Among by the factors considered in assigning parentage Court nonbiologically-related to the partner parties’ were union, civil their mutual legally recognized design expand their insemination, artificial family through partici- their shared active birth, pation prenatal care and and their from the co-parenting until conception breakup. By time their virtue of the statute, in the civil union the factors equal-protection provision that would make a husband a of a child born from artificial applied equally nonbiological partner insemination to the of a civil union. Id. Miller-Jenkins, hardly 18. The dissent characterizes which was defendant, barely “closely analogous”

cited and discussed Post, addressing question actually presented and as “the here.” But the differences between present Miller-Jenkins and the case far singular similarity exceed their of a now-estranged who partner rearing shared child with the mother. In case, union, no any legally there is civil or other recognized domestic relationship parties between the as in Miller-Jenkins. Miller-Jenkins, Unlike the child in in the children this case are product not the artificial mutually-agreed-upon insemination. most Perhaps critically, this case there is no statutory extension marital, stepparent to parental nonbiological parent which to upon parentage base claim. In short, the parental rights recognized in Miller-Jenkins were based upon statutory rights of civil union partners, not on general judicial endorsement of facto parenthood. de

II. ¶ 19. In this appeal, defendant contends that equity provides a jurisdictional basis for de facto to petition court custody, parentage and visitation in the absence of a statutory so, right do and notwithstanding holding in Titchenal that equity jurisdiction confers no in the civil court for such claims. The dissent insists defendant’s claim a statutory is parentage action which he may assert as a standing parent” “natural 302(a).6 entitled a parentage § order Defendant, under 15 V.S.A. however, that, concedes as one who welcomed chil- nonbiological life, dren into his he has “no legal remedy.”7 He contends that best-interests-of-the-child case law is inconsistent with our denial equity jurisdiction in Titchenal to permit consideration of de claims, parentage facto developments family dynamics, demographics, and both foreign and domestic case law since Titchenal, militate favor of departing from that equity ruling. complaint Defendant filled out a indicating standardized form he sought responsibilities, an award of sole but not did seek a finding complaint. he was a of the children named in the That this was oversight “checking form, others, a mere off’ some boxes on the but not is accompanying supporting evinced in his petition, memorandum wherein argument he never even cited the statute let alone offered an that he parent” Rather, could or should be considered “natural under that statute. he parental rights responsibilities asks the court to equitable award him an under parentis (literally, place parent”). doctrine of loco “in the of a Black’s Law (7th 1999). Dictionary 791 ed. confirming unavailability legal remedy, Further posited defendant that if legally sophisticated sought legislative he were more he would have action to afford “legal opportunity present his case for visitation.” ¶20. Thus, claim essentially appeal defendant’s — his particularly given acknowledgement absence equity 377, Titchenal, at 166 at any remedy of available law.8 Vt. 693 (“[A] court may equitable powers grant A.2d at 684 exert its only adequate legal remedy relief when ... no is appropriate available.”); Poitras, 153, 155, 919, v. 224 Gerety 126 Vt. A.2d 921 (1966) will not a (“Equity plain, afford relief where there is law.”). remedy and at For its adequate, complete part, the dissent statutory embarks on construction and case not advanced analysis defendant, by though ordinarily rejects even this Court arguments Mullestein, 175, appeal.9 not raised on 148 Vt. at 531 A.2d at 893. ¶ 21. below, For the reasons discussed we decline defend ant’s invitation to abandon our reasoning accept Titchenal and doctrine, defendant, a broad de facto parent suggested by as that allow essentially would former domestic a partner compel biological parent against to defend the unrelated ex-partner’s claim that he or she is a “parent” judicially entitled to enforced 8 Indeed, brief, defendant does not even cite the statute in his let alone argument phrase parent” may anybody make the that “natural include Rather, judicially adopted Court deems to be a under a test. defendant’s — opinion weighing equities entire brief like much of the dissent’s is aimed at adopting equitable in favor an of such doctrine. 9 statutory argument defendant, by We need not address a never raised but we reject suggestion opinion plain the dissent’s that our is inconsistent with the language statutoiy Legislature’s of Vermont law and the intent. As we have noted before, putting exception stepparents, purpose underlying aside the limited putative “biological” bring statute was allow “to an fathers action paternity” parents. Limoge, determine child born to unmarried Lawrence v. (1988). 569, 572, 802, explains 546 A.2d 804 This the use of the term just parent,” “natural as the same term was understood in B.L.V.B. to mean a biological 372, parent. (explaining adoption See 160 Vt. at 1274 parents” anticipated statute’s adoption termination of “natural would biological parents, biological remove children “from the home of the where the child”); compelled legal obligations elect or are to terminate their to the Palmer, (N.D. 1994) (“[Cjommon 180, Supp. see also Jenkins 902 F. 184 Iowa usage phrase father.”), biological dictates that the ‘natural father’ be defined as (8th 1995) part, part, vacated in and remanded in 62 F.3d Cir. aff'd (“The commonly ‘natural’ father of child is understood to mean the child’s (Ct. father.”); A.A., 2003) (“A biological Rptr. App. In re 7 Cal. 3d natural father.”); father is one who has been established as child’s Belsito v. Clark, (Ohio 1994) (“While 644 N.E.2d Ct. Com. Pl. various terms are identify parent, used to a natural a review of case law leads to the conclusion that parent’ parent being ‘natural refers to child of the same blood or related blood.”). See S. “Ain’t I a

parental rights responsibilities.10 Coupet, Debate Kinship Caregivers Parent?”: Exclusion from Parenthood, L. Expansions Change over 34 N.Y.U. Rev. & Soc. (2010) (arguing parenthood 595-96 that de facto should not be conjugal relationships advocating limited to for inclusion of kinship caregivers potential parents). Though de facto ulti- jurisdictional on mately grounds, reasoning decided Titchenal, which declined to basis for recognize equitable facto no jurisdiction parents, compelling over de is less when to the same cause of action in court. applied ¶ 22. position Defendant the same as the de facto Titchenal, equity support jurisdiction does not for a nonparent custody rights any to assert child more here than it did in Titchenal. The explained equitable powers Titchenal Court grant are available “to relief appropriate only judicially when exists, cognizable right adequate legal remedy and no is avail may able. . . . Courts exert equitable powers upon based common- law, statutory, or constitutional rights, upon judicial or acknowl edgement public-policy considerations establishing as-yet- 377, unrecognized legal right.” 166 Vt. at 693 A.2d at 684. The in plaintiff statutory Titchenal was without a or constitutional right court, to petition superior and so the became question whether public common law or considerations policy required recognition of jurisdictional de facto parents purposes.

¶ 23. Common law was unavailing respect. Vermont “general follows the common-law rule that parents right ha[ve] control, to custody, and services of their minor children free 378, governmental from interference.” Id. at 693 A.2d at 685. We observed that Vermont had no common-law history interfering authorization, with the of fit statutory absent exception the narrow of the state’s of parens patriae exercise power adjudicate Id.) to or dependency neglect petitions. see also A.D., (1983) 432, 435-36, In re 143 Vt. (stating that when “the State intervenes the area of child it neglect, 10Today’s supports possibility equitable decision neither forecloses nor of an circumstances, specific doctrine determine under such as where two persons agree through conceive child artificial insemination. Cf. Debra H. v. (N.Y. 2010) R., (Smith, J., concurring) (suggesting Janice 930 N.E.2d (cid:127) allowing parental couples through for same-sex have who child artificial union). living together, joined insemination while if not even married or civil patriae legitimate does' so as to the child” with “a parens safety interest in the and welfare of the child” as well compelling (citation omitted)). as “maintaining integrity.” ¶ 24. were considerations public policy helpful. Nor Titchenal and those affected the decision did not plaintiff face circumstances “cruel or to the con- shocking average [person’s] Titchenal, ception justice” as a result of that decision. (alteration omitted). 693 A.2d at 686 in original) (quotation

Partners of heterosexual or same-sex could their couples “protect in potential parentage through existing procedures. interests” now, couples Heterosexual could then and as same-sex can couples now, parentage rights through marriage adoption, achieve nonbiological parents same-sex can similar relationships gain through assurances adoption.11 Titchenal, As in acknowledge we “there are considerations that favor

public-policy allowing parties third claim ing parent-like to seek court-compelled parent-child considerations, contact.” Id. at 693 A.2d at 689. These however, are still not so as to persuasive compel recognition of a action, jurisdiction new cause of and matching equitable to enter it, tain acquaintances so that and partners adoptive with less than or even can stepparent court-compelled status seek visitation with children of persons legally related to them and against the Titchenal, wishes of their natural parents. As we observed “[g]iven the social complex practical ramifications of expand ing persons classes of entitled to assert parental rights by visitation, seeking custody or Legislature is better equipped” to address this issue.12 Id. Deference to the Legislature continues prudent be “because the laws pertaining parental rights and responsibilities contact have developed been over 11Today, parental there are other of assurances for children bom into Miller-Jenkins, marriage 78, (holding presumption or civil union. See 2006 VT 48 308(4) parentage applies § of in 15 V.S.A. to children bom from artificial insemi union, marriage regardless adoption). nation into or civil of connection or 12 far-reaching. recognition Such ramifications could be Does of a common law or equitable parental by partners claim for contact unrelated domestic include a corresponding right support putative to claim child from an unrelated but de facto parent? Can unrelated but de facto then interfere with the biological parent’s away every decision to move with his or her children? Will proceeding present partners relief-from-abuse an avenue for defendant to counter parentage complaints? attack with de facto

196 judicial or construction solely legislative enactment through time of enactments.” legislative that inaction since legislative defendant Essentially, posits

Titehenal judicial prompt claims like his should recognizing than rights. citing facto Yet other parentage invention de statistics that show family demographics national and Vermont defendant couples, children in households with unmarried more to requiring consideration this Court find proffers equitable no far jurisdiction Legislature where the has so declined to such fill perceived it. courts have declined to defendant’s extend Other Overton, (Mich. v. 288, 542 292 vacuum.13 See N.W.2d McGuffin curiam) 1995) (holding generalized that no third- App. (per Ct. 13 repeatedly depart states that we from the modern trend toward dissent judicially parenthood, universally created de facto but such “trend” is acknowledged. advocating expansion Even commentators for the establishment or parenthood recognize country, including facto that courts around the de — decisions, splintered recent are indeed on this issue. See J. divided Grossman, Illegitimacy: Tying Parentage The New to Marital Lesbian Status for (2012) Co-Parents, 671, Pol’y (noting 20 Am. U. J. Gender Soc. & L. 677-79 that grant parents parity legal parents, recognition “a de facto to few states” universal,” parentage rejecting far from of de facto “is several states it decisions); Ball, outright, including Rendering Illegitimate in recent C. Children Parenting Hiding Fagade Certainty, Former Am. Partner Cases: Behind 20 623, (2012) Pol’y (comparing granted U. J. Gender Soc. & L. 624 courts that grant standing persons seeking parental rights refused to for on based de-faeto status). courts, Maryland parentage including Several courts of last resort in in a decision, decision, decision, in a in a 2008 New York 2010 and Utah 2007 have See, Gordon, judicially adopt parenthood. e.g., facto declined de Smith v. 968 (Del. 2009) statute) 1, (concluding (superseded person claiming A.2d 2-3 standing petition custody be de facto did not have to file for under relevant (Fla. statute); Dixon, 669, section of v. 921 Wakeman So. 2d 673 Dist. 2006) statutory custody App. (finding support granting Ct. no visitation or K., persons claiming parenthood); Margaret de facto v. Janice M. (Md. 2008) Maryland (holding parenthood recognized 74-75 that de facto is not concluding any person qualify who would for such status cannot obtain demonstrating exceptional prereq visitation or without circumstances interests); White, uisite to court’s consideration of children’s best White v. 293 (Mo. 2009) 1, 11, App. (finding standing no S.W.3d Ct. to establish rejecting equitable de-facto-parent under statute and and in-loco H., parentis arguments); (reaffirming prior Debra at 192-94 its N.E.2d rejection judicially refusing parenthood created de facto to exercise its action); Barlow, equitable powers legislative to do so absent Jones v. 154 P.3d (Utah 2007) (rejecting judicial adoption equitable de-facto-parent in-loeo-parentis partner doctrines to allow former domestic to obtain visitation (Va. 2008) rights); Siperko, App. (refusing Stadter 661 S.E.2d Ct. doctrine). by judicial adopt equitable de-facto-parent fiat

197 for custody proceeding party in standing existed party .. . has been Legislature “[t]he because parent-like bring an limiting persons may in third who those very specific M., 572 N.E.2d 29 Virginia D. v. custody”); action for Alison (N.Y. 1991) standing have to facto did not (holding de “gives law domestic relations visitation with child because pursue proper their right proceedings ensure bring parents care, custody their and control” “[w]here exercise of of gave categories it it other Legislature appropriate, deemed in the to seek visitation ... child’s best standing persons (citations omitted)); Thomp- in In re (emphasis original) interests” 1999) (Tenn. son, App. (stating 11 S.W.3d 923 Ct. upon generally has conferred

although legislature “Tennessee’s children, of it has right of and control their parents the third claim to de facto upon” parents not who be parties conferred omitted)). (citation “any right visitation.” arguments recognizing remaining support Defendant’s over a claim of de facto are jurisdiction four-part a test to determine unpersuasive. proposed Defendant eligible proceed as de facto thus persons qualified approach contact.14 Such was consid- seeking Titchenal, rejected in insofar as the in that case plaintiff ered and only created to assure that those third argued that “tests could be who have an intended and shared de facto- parties developed petition with a child could visitation.” 166 parent relationship Indeed, at doubted that the seriously Vt. A.2d we were workable: practical ramifications such test legal new that would Although might recognize we juris- court to its permit superior equitable extend diction, jurisdiction not a test that upon should rest or custody would the merits of visitation effect examine reality, In petitions case-by-case on a basis. such jurisdictional not be a fact-based test would threshold test, require evidentiary a full-blown but rather would “(1) jurisdiction test confer when the natural or Defendant’s would (2) petitioner parent-like relationship, to and consented fostered (3) household, petitioner obligations together same child lived in the assumed (4) compensation, petitioner parenthood expectation without of financial parental length of have has been in a role for a time sufficient to established with bonded, relationship, Parentage dependent In the child a nature.” re 2005). (Wash. L.B., 122 P.3d Thus,

hearing most cases. such test would from prevent parents having defend themselves the merits of against petitions brought by potentially wide of third range parties claiming parent-like rela- tionship with their child. 382, Thus, at 693 A.2d at 687-88. live-in of a member

household with children eligible plead would be the foundational facts for contact and claim court family jurisdiction, of irrespective actually whether the court determined the person requirements satisfied the of such a test. Defendant’s process require legally would recognized parents answer and defend against third-party claims child contact or custody at jurisdictional the threshold hearing. While some courts have claims, opened their doors to these we remain disinclined to follow suit an imperative absent from the General Assembly, every lest break-up domestic children the household become a potential battleground for child custody by visitation and ex- paramours, even mere cohabitants.

¶ 28. not, Vermont .cases before Titckenal do as defendant argues, presage a different conclusion. Defendant looks to Paquette v. Paquette and Miles v. support jurisdictional Farnsworth to his claim. context, The cases are cited out of and are inapposite.

¶ 29. Defendant upon seizes dicta in Paquette to the effect that “extraordinary circumstances may exist that would justify award of custody nonparent,” 91, to a 146 atVt. 499 A.2d at 29. But the of holding Paquette interpreted a then-existing statutory 652, provision, § 15 governed custody V.S.A. which orders for “any minor 86, child the marriage,” id. at A.2d at (emphasis 499 26 added), allowing an award of custody child to a if stepparent it was “shown by clear and convincing evidence that the natural is unfit or that extraordinary circumstances exist 92, warrant such a custodial order.” Id. at 499 A.2d at 30. Defendant is not a stepparent by marriage, and thus is not aided by Paquette.

¶ 30. We also find unavailing defendant’s reliance on Miles v. Farnsworth, 491, (1960), 121 Vt. 160 A.2d 759 to support his argument entirely that parties may unrelated third be awarded in the custody statutory Miles, absence of authorization. In to a parties stipulated child, divorce to father’s custody minor provided the child lived at the home of the paternal grand-

199 issue on was whether mother parents. particular appeal demonstrated the in circumstances to warrant necessary change 493, at at 760. custody modification the child order. Id. mother, custody following The trial court awarded to the her remarriage, based on her and her son an stepfather affording home, excellent and beneficial influences in the training face 495, natural father’s at properly supervise failure to the child. Id. interest, A.2d at 761-62. to grandmother’s As the court noted she was a third to this “actually person marriage relationship” and between a mother party third the mother must “[a]s case, custody in the prevail compelling absence reasons contrary which are not here.” Id. at at present A.2d correctly 761. Defendant observes that the Court evaluated the love and grandmother’s inevitably waning ability to care for the boy, id. at A.2d but the crux of the case was that mother established a change circumstances sufficient to alter the custody order. Id. at at 762. A.2d To the extent that Miles third-party considered it rights, concluded short of extraordi- circumstances, nary a mother’s as a natural parent trumped third-party, grandmotherly, and even interests in the 494-95, the child. Id. at 160 A.2d at 761-62. for Assuming, that argument only, Miles endorses third party court-ordered child circumstances, contact in compelling and assuming ruling such a could survive a Troxel without a challenge showing of unfitness, defendant fails to assert either mother’s unfitness or exceptional circumstances here.

¶ 31. Defendant seeks support also from Vermont statutes third allowing parties to take of custody children certain cited, however, circumstances. The legislation concerns disposition, care and maintenance of by children the state child welfare agency person institution, “or to some or suitable as shall be equitable” desertion, where a guilty nonsupport or §§ 291. It V.S.A. is not at all that plain convey the statutes standing claim, to to person custody assert as to opposed the court to authorizing consider with a placement nonparent dire circumstances. Even without that assuming, deciding, defend ant custody could seek as such a person, predicates parental desertion or nonsupport are not presented here.15 by assignment “parental rights other statute cited defendant deals with responsibilities” arising § out of annulment and divorce actions. 15 V.S.A. 665. that the decisions in Titchenal Finally, defendant contends O’Connell-Starkey Starkey, 2007 VT inconsistent, the state to force one unre- allowing

A.2d are to a child and forbid another person financially support lated argues unrelated visitation with a child. Defendant person that would these decisions create a “void Vermont law be present a decision that allows properly [defendant] filled that he is the father” of the children in this psychological evidence these “for an unmarried allowing case. Defendant reads cases his, child, for a it responsibility thinking help man to assume was child, to child after the agree support parties’ separation raise the pay support standing but then be forced to child and lose petition for if it was later determined that he was not related.” This contorts the case proposition law. In Starkey, plaintiff gave birth to a child while

cohabiting parties with the defendant. The married afterwards and subsequently years divorced seven later. The final divorce decree adopted parties’ that the child was of the stipulation marriage, thereby establishing legal parentage plaintiff both and the years defendant. Some later DNA revealed a testing ninety-nine father, percent probability that the defendant was not the child’s family but the court another approved stipulated settlement of the parties, provided which the defendant was responsible later, sixty percent of the child’s tuition. college parties Still court, agreement, approved by entered another that the defendant was not the child’s biological father and thus had no physical rights to the child. The no agreement made mention of the earlier order that the defendant to pay sixty was percent college tuition.

¶ 34. The defendant his challenged obligation pay the tuition run, after the three-month divorce nisi had period arguing he obligated could not “be support college education child to whom he is not and for biologically related whom he has provision parental rights responsibili- This calls on trial court to evaluate including relationships ties vis-a-vis the best interests of children their with third 665(b)(4), (6), (7). parties. legally- § 15 V.S.A. Defendant never entered into a recognized spousal relationship plaintiff; concerning spousal with thus the statutes desertion, annulment, inapplicable. anything, and divorce are If defendant’s ac- knowledgement legal relationship of the lack of a in this case lends credence to the proposition Legislature’s province legally recognize that it is within the to de facto parents. Starkey, 2007 rights responsibilities.” all parental relinquished ¶ order established the final divorce Conceding 17. VT memorializ- agreement that the argued the defendant parentage, his negated child’s father not that he was ing child support under the earlier tuition pay college obligation it overlooked the because rejected argument order. Id. We decree “is not a divorce a determination parentage fact that . child . . modify support. in a motion to to collateral attack open paren- and unlike parentage, final divorce order establishes [T]he family court support, and child responsibilities tal the nisi has period once jurisdiction parentage not retain does ¶ run.” 18. no because he has no assistance to defendant Starkey lends Biology every- here. is not establishing parentage

final court order Lawton, See, Columbia v. e.g., contact cases. thing conclusion that 2, 1, (affirming A.3d 1218 2013 VT with standing proceed natural father lacked order and constitu- already court issued action because otherwise). Yet, if anything, require did not tional considerations where the basis for example as another Starkey stands a a connection to depends upon responsibilities finality against collateral attack judgment turns on Starkey child. inconsistency, to our refusal no or exception, and creates a jurisdiction pseudo-parentage to extend to entertain Titchenal legal relationship.16 independent claim such order III. family also court’s issuance challenges Defendant him with children. denying plaintiffs final RFA order contact exactly type noteworthy claim of situation Titchenal It is that defendant’s is during disapproval. reported that his with Defendant foresaw Adoption they through. an plaintiff, adoption, into but did not follow was looked Titchenal, albeit, out, points expensive option contemplated as defendant as accept specifically rejected proposal “a wide and cumbersome one. Titchenal variety failing adopt lack of funds or fear discrimination of reasons for forming adoption agency, example” “the basis for the court’s nonparent’s rights

jurisdiction disputes” concerning to resolve factual Titchenal, legal parent’s Vt. at 693 A.2d at 689. child. and visitation with intervention, preference defendant offers no reason than clear for court Other his position, potential equipped and its why Legislature to consider his appropriate. policy implications, a solution if and fashion

Defendant’s brief does not address in detail trial court’s order, alleged issuing error the final RFA except point to out “[djefendant that when the trial court checked the box shall have children,” no contact with the minor it included the hand-written “[djefendant note that is not their biological father.” To the extent defendant contests the final RFA order to assert a parentage children, claim plaintiff’s § over 15 V.S.A. 1103 is wrong vehicle. prevention abuse “[T]he statute is aimed at providing victims, immediate relief abuse not at determining the parties’ rights respect to custody, support or . . . property. Accord- ingly, custody determinations are better resolved in proceedings divorce, concerning legal separation, parentage, or desertion and Dimino, 1, 5, (1993). support.” Rapp 162 Vt. 643 A.2d ¶ 37. general objection Defendant’s more RFA terms, order’s including the provision, no-contact cannot succeed light today’s holding court family jurisdiction lacks to review a legally unrelated defendant’s parentage custody and claims. Review order, of the issuance of an RFA terms, and its is “In relations, deferential. matters of personal such as abuse prevention, the family court is a unique position to assess the credibility of witnesses weigh the strength of evidence at hearing.” Raynes v. Rogers, 52, 9, 2008 VT 1135. Accordingly, this Court reviews “the court’s decision grant or deny a protective only order for an abuse of discretion, upholding findings its if supported by the evidence and its if conclusions supported by the findings.” Id.

¶ 38. The RFA order and its terms are supported by the trial court’s findings. trial court found defendant placed plaintiff and her children in imminent fear of physical serious harm through his back-to-back a.m. forays plaintiff’s resi dence. The children were present during repeated defendant’s early morning bouts of banging on their door. The trial court also — found that supposed goal these ventures welfare of the children could have been accomplished far more reasonably than appearing on a woman’s at 2 doorstep a.m. after ensuring no other man is on the premises. These findings the RFA support order’s terms.

Affirmed. Dooley, J., joined I concurring. Dexter, Titchenal v. primarily because I agree with this part of the rationale: practical ramifications complex social Given pa- entitled to assert persons classes expanding visitation, Leg- or by seeking rental problem. to deal with the is better equipped islature Legislature particularly appropriate to the Deference pertaining arena because the laws in this contact have responsibilities en- solely through legislative over time developed been legislative enactments. judicial construction actment (citations omitted). (1997) Thus, 385, 682, 373, 693 689 166 A.2d Vt. of aspect I the reliance on this the agree majority opinion’s with time, I that At same Titchenal reasoning. recognize Titckenal the 1997, years in We revisited ago. was over seventeen decided Miller-Jenkins, eight years ago issues Miller-Jenkins related In 78, 441, addressing rights A.2d 951. the 2006 912 VT to a child whose birth was partner respect civil-union with insemination, artificial we partners’ planned result of with Legislature directly “the has not dealt new noted that families from reproductive technologies and the that result those many as other courts technologies.” “expressed], We action, that,] have, . . . for preference legislative [concluded but action, protect of that we must the best interests the absence of child.” Id.

¶ 40. I legislative I admit that it more difficult to favor find legislative action in the face of of judicial years over action think need of subject greater inaction. I can of no — defining may action than this one who be considered legislative and purposes determining parental rights respon I with voting contact. While am sibilities case, responsibility protect in this our the best majority only challenging the child will interests of become more that are well presents nature families circumstances changing inadequate of our now archaic and contemplation outside the may point come a recognize tipping statutes. I that there where beyond to define those of judicial rights responsibilities action and marital becomes unavoidable. I biological parents partners day. act rather that the before we see Legislature would subject, at least theory, 41. In addressed the Legislature Proceedings Parentage adopted. as of when the Act was See Miller-Jenkins, how- §§ 15 As out pointed V.S.A. 301-306. we ever, that limited very primarily statute was enacted to facilitate of child-support obligations the establishment and their collection. (“We have examined the legislative history See VT of the statute and can find that it no indication was intended to govern rights through children born artificial partners, anything insemination or to same-sex or to do other provide speedy recovery support”). Except than of child in a manner, wholly the Act perfunctory failed address responsibilities, responsibilities of others respect beyond support to children its child purpose. ¶ 42. Legislature adopted Parentage has not the Uniform (2001), Act of 9B U.L.A. 386 which would have addressed beyond support. Legislature issues child Nor has the adopted the (2001), Parentage Uniform Act of 9B U.L.A. as amended in 2002. The more recent important they versions are because particularly reproduction address child of assisted and gesta- agreements, tional as well as some the other issues that have arisen as the result of changing family structures. In addition to by Act, courts, taken approach Parentage the Uniform other including one of the out-of-state decisions cited the majority, (N.Y. R., 2010), H. Debra v. Janice 930 N.E.2d 184 analyzed have jurisdictions statutes from other precisely address the issues presented here. See id. at 193-94.

¶ My purpose noting legislative various alternatives is not them, to endorse point but instead to out that models exist a thorough airing for of the issues and alternatives. I do not suggest drafting enacting legislation and such easy. will be it Undeniably, complex would involve and policy difficult choices based on an in-depth understanding composition of present- day and future families. It for very reason that I urge the act, Legislature to and to act with urgency some so that an archaic legal system does not create uncertainty for families and children and inflict real harm on them. Robinson, J., I dissenting. Although acknowledge Titchenal, presents

father this case as a I challenge do not question actually believe that the raised this case is whether “equity provides jurisdictional a basis for de facto petition family custody, parentage the court for and visitation in so, statutory right the absence of a to do the notwithstanding and holding equity jurisdiction Titchenal that confers no in the civil

205 that the ante, Nor do I believe claims.” See for such court is entitled nonparent third-party a in this case is whether question ¶¶ ante, contact. See rights such to parent-like a this is equity, invocation of father’s Notwithstanding 22-26. accordingly action, majority’s opinion and statutory parentage the basis beyond decision well of the Titchenal the reach expands decisional law decided, Vermont’s directing which it was upon trend. from the modern away squarely that, absence of in Titchenal was holding core 45. The court, not so, which did superior doing statutory

a basis concerning cases ordinary to decide authority statutory have even decided, could not Titchenal was at the time custody and visitation nonparent parent- powers assign equitable its general invoke 373, 377, A.2d Dexter, Titchenal v. rights. like statutory (1997). bring case did not in that putative parent court, as the action; superior essentially she asked time, its general at the to invoke jurisdiction general court of functional parent- protect long-established authority equitable out a new basis carving no interest This Court had child bond. jurisprudence develop in order to jurisdiction for civil court it petition, mother’s rejecting equitable parenthood; her claim on basing fact that she was heavily on the relied explained: The Court statutory source. established and amicus by plaintiff the scheme advocated [U]nder adjudicate disputes con- curiae, court would parent- and responsibilities cerning parental set forth and criteria parameters child contact within the divorce, neglect, dependency statutory parentage, relief-from-abuse, and at separation, nonsupport while adoption proceedings, guardianship times to con- equitable powers court would exert.its superior statutory pro- outside these arising such disputes sider ceedings. Courts plaintiff’s proposal. no basis for

findWe first have they unless powers cannot exert equitable subject parties. matter and jurisdiction over (citations omitted); also id. at 376-77, see 693 A.2d Id. at of whether we view n.2, (“Regardless at 684 n.2 (visitation) parental as a limited form of contact parent-child upon a limitation (custody) or as rights responsibilities and parental another’s responsibilities, and rights may such be granted in a only jurisdictionally sound proceeding.”); id. 377-78, 693 A.2d at (finding 684-85 no underlying legal basis for claim plaintiffs that would allow superior the court to apply its equitable powers adjudicate claim); 378-79, her id. at at 685 (distinguishing custody-related the cases cited plaintiff and amicus curiae they because “involve decisions made within the statutory context of proceedings”). Although this Court undeniably expressed skepticism about the concept “de facto” parent the opinion, Titchenal the decision turned on procedural jurisdictional posture the case. This conclusion is not only supported by itself; a reading of Titchenal as set forth fully more below, it is only reading Titchenal that compatible is with this Court’s subsequent opinions.

¶ 46. In marked contrast putative in Titchenal, mother defendant here did not equitable file an claim in a court of general jurisdiction; instead, he a statutory filed parentage action family court a claim that subject is not to the analysis of equity jurisdiction that drove this Court’s decision in Titchenal and that does not require us to revisit or overrule our holding Moreover, Titchenal. defendant’s statutory parentage claim does not raise question defendant, whether as a legal stranger children, to the is to contact with them on the entitled basis of his longstanding Instead, relationship.17 it raises an entirely distinct legal defendant, issue: is the action, this parentage children’s parent? This is the same threshold question in any raised parentage action.18 What makes it complicated here is that the putative father this case was concededly never married to the children’s legal parent, and he does not assert a biological connection to the children. Neither 17Accordingly, Granville, (2000), cases like Troxel v. dealing 530 U.S. 57 with visitation, grandparent inapposite. are Defendant requesting here is not contact though the children even parent; by he is not filing parentage action, their asserting he is parent. that he is their 18 I focus on the action because that matter determines the threshold question of legally recognized whether defendant of either or both of is, these may children. If he deny trial court parental nonetheless him responsibilities deny and curtail or even him contact in the context of the relief-from-abuse case or the case if such an order is supported by competent concerning evidence the children’s best interests may defendant’s fitness. But it ground base its decision on the legal parent. he is not the children’s has nonparent a third party cases in which Titchenal nor other definitively question answers the a child contact with sought claim parentage authorizes a statute parentage Vermont’s whether in case is this question presented circumstances. The under these defendant’s jurisdictional a basis for provides equity not whether claim; under what circumstances Vermont’s it is whether and statute, 301-306, a determination of permits §§ 15 V.S.A. parentage married to a child’s a is neither .putative parent when parentage that biologically parent.19 nor related to parent, legally-recognized marriage with a child and Although biological a connection of the child’s birth are both a child’s the time to a review of finding parentage, factors significant supporting law, statutes, from other states and decisions applicable our case always necessary factors are not makes it clear that these this Court to elaborate upon This case calls parentage. establish analysis, that apply parameters parenthood, on the dismiss, that is not pattern of a motion to fact in the context decisions of this Court.20 by any prior resolved squarely

I. in question answer to the central majority’s implicit 48. The reinterpretation existing on a of this Court’s this case is based far more recent subject, including on the decisions precedents Titchenal; language with the and structure than is inconsistent broadly; statute as well as Vermont’s statutes more and drives expressed Legislature; undermines the intent squarely law in a direction at odds with the modern Vermont jurisdictions. trend other Court, many “biological” term this other 19 I use the term because this is the courts, commonly recognize general arguably I this more term have used. relationship: genetic gestational. encompasses In most two different kinds of — cases, gives gestational parent a child is also a who birth to child, genetic parent gestational parent but in cases in which a carries case, egg, may In lack of another’s not be the case. it is defendant’s them, children, genetic not the fact that he did not bear connection with presents potential obstacle to his claim. appeal on from the trial court’s dismissal of defendant’s We consider this case present pleadings. yet opportunity to He has not had an claim based on today parentage. only question supporting before us evidence his claim of

whether, prove parentage allegations, might possibly on his he be able to based notwithstanding the fact that his lack of connection to the children and either of them was born. he was not married to their mother when A.

¶ 49. This Court recently question addressed the actually pre closely sented here analogous case. Miller-Jenkins v. Miller- Jenkins, VT Vt. 912 A.2d 951. Lisa and Janet Miller-Jenkins lived together Virginia for several years early time, late 1990s and 2000s. During that they traveled to joined that, Vermont and in a civil union. After in Virginia, back they planned have and raise a child together. Lisa carried the child, sperm conceived with from an anonymous donor that they selected together, and Janet was present delivery room when the child was born. birth, Several months after the child’s they moved their to Vermont. Lisa and separated Janet later, year about a and Lisa moved Virginia back to with the child. Lisa Vermont, filed for civil union dissolution in and consistent request, Lisa’s the court awarded her temporary legal and physical rights and responsibilities child, for the minor with Janet ¶ exercising specified parent-child contact. Id. 4. Shortly after that order, Lisa stopped allowing Janet to have contact with their child a parentage filed action in Virginia, initiating an interstate jurisdictional struggle between Vermont and Virginia courts con cerning Janet’s parental status and obligations. The Vermont court recognized Janet’s legal status as a parent of the ¶¶ child, and Virginia the court denied it. Id. 5-8. After several courts, orders by both this Court heard the case on appeal. Much of this Court’s opinion focused on the jurisdictional interstate issues, but this Court also addressed validity the of the Vermont ¶ trial court’s parentage determination. Id. 41. —

¶ 50. Lisa pointed to the parentage statute in particular its use of the term “natural parent” and the presumptions embedded in that statute and argued that the statute demonstrated that a nonbiological putative parent Janet’s shoes could not abe legally recognized parent. This Court concluded that the parent- age statute does not purport answer the question of who ais parent, rejected suggestion the the use of the term “natural” in the parentage statute reflects a “legislative intent that only biological parents can be for the purposes of the ¶ parentage statute.” Id. 54. The Court explained: We find this to be an overly broad reading of the language. The parentage act does not include a definition of “parent.” It does not state that only a natural parent fact, of statute. In the purposes for parent is the courts to leaving is it to primarily procedural, statute a parentage is a parent purposes who for of define is far more origin history, its it adjudication. Given was to allow likely legislative purpose adjudication cases where bio- summary support child indisputable. is almost logical parenthood added). (emphasis Id.

¶ broadly, statute more this Court Examining parentage 51. of rejected suggestion inapplicability that the expressly doomed regarding parentage statutory presumptions the listed cannot it presumption apply, claim: “Where the parentage Janet’s simply is not a it means we parent; does not mean the individual look to see whether exists without the use must ¶ Accordingly, this Court considered “the presumption.” parent ultimate of whether Janet was a within the question” statute without consideration meaning ¶ explained, reflected in that law. Id. 55. This Court presumptions specific have held that the term to the context of ‘parent’ “We Id.; Lawton, involved.” see also Columbia v. 2013 VT (“The 71 A.3d 1218 determination of an status, status, requires individual’s as a potential factors, of a host of not limited to a including consideration but connection, thereof, child’s or lack to a genetic putative parent.”). Miller-Jenkins, 52. In listed various considerations this Court legal determination that was a support its Janet child, foremost,” that including, “first and Janet and Lisa were a valid union at the time of the child’s birth. 2006 VT However, that factor. the Court did not rest its conclusion on Instead, factors as recognized following the Court the other relevant to its conclusion:

It was the and intent of both Lisa and Janet expectation that would be Janet parent. participated Janet IMJ’s artificially the decision that Lisa would be inseminated to actively prenatal a child and in the care participated bear Both Lisa treated as IMJ’s birth. and Janet Janet during they together, the time resided and Lisa parent as a of in the dissolution identified Janet IMJ is no claimant to the status petition. Finally, there other and, result, negative as a decision would parent, only parent. leave IMJ with one

Id. the fact that Although parties jointly the had decided to have insemination, a child donor fact that using they and the were birth, joined in civil union at the time the child’s were both obviously central to the analysis, specifically this Court declined to which say dispositive: factors were essential or

This is not a precedents close case under the from many other states. Because so factors are in this present case that allow us to hold that the nonbiologically-related is the child’s partner parent, we need address which may factors on dispositive be the issue a closer case. ¶58.21 Miller-Jenkins, 58. In recognized this Court that Legis- lature has left the task of defining parenthood the contours of us, and identified host of factors than biology legal other and a acknowledged relevant question of who is a parent. majority The in this case now conclusions, rewrites and significantly narrows these suggesting the Miller-Jenkins decision on hinged narrowly legal connection, union, in the form of a civil between the Ante, mother and the birth mother. 17. The implication majority’s analysis is that if faced with facts identical to those presented Miller-Jenkins, except with parents who were not joined in legally recognized status at the time child was conceived, this deny Court could the nonbiological mother’s claim out of hand. That very implication is the pains Court took avoid in by relying Miller-Jenkins on parties’ civil union as a persuasive, but not necessary dispositive, factor. In the name of — upholding precedent one Titchenal majority has ex- panded that decision’s reach while reinterpreting dramatically scaling back a more recent and relevant one.

B. ¶ 54. suggestion This Court’s in Miller-Jenkins the legal status of can “parent” factors, arise from a range and is not necessarily dependent upon a biological connection or a relationship between putative parent and birth parent, entirely majority reinterprets the Miller-Jenkins holding, suggesting that it rests on presumption parentage applicable spouse, through marriage to the whether union, biological parent, planned or civil the fact the mothers and/or Ante, ¶¶ together through to conceive the child donor insemination. 15-18.

211 parentage of Vermont’s and structure language the consistent with 392, 403, 697 A.2d 166 Vt. Armitage, Russell statute. See (1997) (“Our statutes is to effect interpreting in goal 637 by to discern first attempt we which Legislature, intent of the statute.”). provides: That statute of the language to the looking has parentage in where cases parentage “An action to establish an action under this by either determined previously not been person ... may brought be by adoption, or subchapter natural of parent or herself to be the or himself alleged alleging 302(a). § 15 a child ...” V.S.A.

¶ statute as a whole parentage of the 55. A fuller examination that the statute as conclusion Miller-Jenkins buttresses our legal to be a question qualifies not answer the of who whole does parent with a child’s biological that a connection and parent, to a claim. See indispensable parentage of birth is not the time Berlin, 117, 5, Ran-Mar, Inc. v. Town 2006 VT of statutory all parts construe (stating “[w]e A.2d 984 whole”). as a harmonious together, possible, scheme where hand, of provides the statute for the conduct 56. On the one See, parentage. e.g., in connection with claim of genetic tests (“On 304(a) require the court shall party, § motion of V.S.A. defendants, child, any acknowledged parent the defendant or genetic testing for the determination appropriate to submit hand, states that “[t]he the other the statute parentage.”). On under this testing proceedings are relevant genetic results parentage.” or to disprove in order to chapter prove added). 304(b) If a claim to putative parent’s § (emphasis V.S.A. connection, question genetic rose or fell on the genetic that a match between Legislature would have indicated thereof, child, on dispositive or the lack was parent putative Instead, it Legislature has made question parentage. clearly while a factor genetic testing, clear that the result of itself, mix, disprove necessarily, prove does not parentage. Finally, presumptions concerning parentage the statute’s

— Miller-Jenkins, which, evidentiary are as we concluded do not collec- production that affect burdens of but presumptions of who is or is not a tively comprehensive frame a definition in a conflicting given directions may potentially point in which one imagine putative one can a case example, case. For testing, another established genetic declines to submit by genetic testing as more than likely 98% to be parent, another was married to the mother at the time of the birth, yet child’s signed another an acknowledgment of statute, parentage. Under each of these would subject be to a presumption of parentage. See 15 V.S.A. § 308. This fact reinforces our conclusion Miller-Jenkins that statutory the presumptions laid out in our parentage statute are evidentiary guides that streamline parentage actions in the vast majority cases, of ordinary but do not purport to collectively establish the legally essential feature or of parenthood. features

C. ¶ 58. This understanding the parentage statute is also consistent with the intent underlying the statute. This Court has previously emphasized statutes, that in construing “[w]e must look ” only ‘not at the letter of a statute but also its reason spirit.’ and B.L.V.B., 368, In re 371, 160 1271, (1993) Vt. 628 A.2d 1273 S.B.L., In (quoting 294, 301, re 150 Vt. 553 A.2d (1988)). In B.L.V.B. this Court considered whether an unmarried committed partner same-sex of a parent adopt could that parent’s child without terminating the initial parent’s legal rights to the — child. The relevant only statute allowed stepparent adoptions adoptions allow a to stepparent a legal become — without terminating a child’s existing legal parent’s rights “when the adoption is made a spouse of a natural parent.” 160 Vt. at 628 A.2d at 1273. B.L.V.B.’s nonbiologieal mother could not at the legally time marry mother, his biological and the notion couples same-sex might qualify spouses was at odds with the established understanding of that term See, at the time. e.g., State, Baker v. 194, 199, (1999) Vt. (“Although it is not necessarily only the possible definition, there is no doubt that plain the ordinary and meaning of ‘marriage’ is the union of one man wife.”). and one woman as husband and Notwithstanding arguably the statute, clear language of the Court beyond looked the text of the statute to its underlying intent. Concluding that intent of “[t]he the [Ljegislature was to protect the security of family units by the defining legal rights responsibilities and of children who find themselves in circum stances that do not include two biological parents,” this Court rejected a literal interpretation of the statute as inconsistent with the best interests the children the statute sought to protect. In 1274. The Court authorized B.L.V.B., 744 A.2d at re mother. nonbiological by the child’s adoption stepparent of the issues before directly determinative B.L.V.B. is However, interpreting approach this Court’s today. us — respon- our emphasizes one that adoption statute applying children protect intent Legislature’s effect to the sibility give with their relationships their legal by establishing preserving ex- Legislature case. The present in the resonates parents Parentage child-centered goals enacting codified its pressly Act: Proceedings legal rights, of this state policy

It estab- duties, be obligations privileges, children, regardless of all for the benefit lished or out of during marriage civil whether the child is born wedlock. statute, statute is adoption § Like the

15 V.S.A. 301. units,” in the case by, security designed “protect statute, legal rights responsi defining automatically recog are not parents for children whose bilities 373, B.L.V.B., 744 A.2d of law. In re by operation nized not limit the purpose statement of does Legislature’s at 1274. The rela recognition biological to the goals statute’s logically of children would not and the best interests tionships, connection nonbiological with a call for such a limitation. Children of their recognition much of a need for just to a have adopted other as those who were relationship established with the 2012-NMSC-019, v. Chatterjee King, in B.L.V.B. See one ¶ (“[T]he 37, are served when child’s best interests 280 P.3d 283 emotionally, financially support and intending parents physically, lives.”); the child comes into their the child' from the time (S.C. 2006) Johnson, 162, App. 633 169 Ct. Middleton v. S.E.2d (“[T]he bond reflects parent-child] of the existence of finding [the connection, ordinarily spiritual singular emotional child, has legal parent in only expected relationship and child who have neither blood been created between adult omitted)). (quotations nor between them.” adoption D. in cases some recognition This previous Court’s nor a connection to a child biological with neither a

individuals 214

legal parent may the child’s parental rights have consistent with the modern trend. The procedural jurisdic tional foundations for recognizing the parental rights of such parents vary widely, and the consequences such a finding are (For not uniform. example, some states “de facto” stand in parity with biological parents, some, they whereas in' are entitled to visitation but not necessarily Nonetheless, custody.) recent years host of state courts and legislatures have embraced principle limited and well-defined circumstances a person who fully engaged has as a child’s parent may have obligations despite the lack connection or legal ties to a child’s other parent, and even if the See, child’s other parent is fit. e.g., C.C.R.S., In re Custody 892 (Colo. 246, 1995) (“[T]he P.2d best interests of the child standard is the prevailing determination a custody contest between biological parents and psychological parents.”); Smith v. Guest, (Del. 2011) 920, (affirming award of joint custody to adoptive mother’s partner former pursuant to statute authorizing award of custody to de facto parents); E.N.O. v. L.M.M., (Mass. 1999) 711 N.E.2d (recognizing visitation rights of de facto parent who had and, resided with the child the consent and encouragement of the legal parent, per had formed a share of caretaking functions at great least as as the D.E.W., parent); C.E.W. v. 2004 ME 845 A.2d 1146 (holding that nonbiological mother whose sprang from her status as the child’s coparent throughout her life stood parity determination); with the biological mother for the purpose a custody M.J.B., (N.J. (discussed 2000) C. 748 A.2d 539 below); V. Chatterjee, 2012-NMSC-019, 37 (construing statute to allow woman “to establish a natural parent and child relationship with a child whom she has held out as her natural child from the moment the child came into the lives of both the adoptive mother mother”); and the presumptive Dwinnell, Mason v. 660 S.E.2d (N.C. 2008) Ct. App. (affirming award of joint custody to gave who birth to child and her former domestic partner who coparented birth); the child Fair, from Brooks v. 532 N.E.2d (Ohio 208, 1988) 212-13 App. Ct. where, (holding that with consent, husband’s mother conceived using reproductive technolo gies, and husband nurtured the own, child and held her out as his court would not find that husband was not the father though even (cited he was not the child’s biological parent approvingly in

215 L.R.M., 78, 57)); 786 A.2d Miller-Jenkins, T. B.v. 2006 VT 2001) (Pa. and visitation to award of (affirming partial acted in parental who partner mother’s former domestic legal (“[A] (R.I. 2000) DiCenzo, Rubano capacity); who has connection to a child but biological has no person who may, to that child or de facto psychological as a served circumstances], his or her entitlement establish under [limited Johnson, child.”); Middleton v. vis-a-vis the parental rights (S.C. 2006) that mother’s App. (holding Ct. S.E.2d 167-70 where, nearly ten had to seek visitation ex-boyfriend standing between mother had fostered years, of her large part parental and child and had ceded a ex-boyfriend him, ex-boyfriend child live including having responsibility time, had functioned as child’s ex-boyfriend half the about (Wash. 2005) L.B., 122 P.3d 161 Parentage In re parent); (discussed below); K., In re 619 S.E.2d fully more Clifford (W. 2005) “psychological parent” that has (recognizing 156-57 Va. than custody proceeding ordinarily in a would be greater nor person biological adoptive parent afforded a who is neither the (Wis. child); H.S.H.-K., In re 533 N.W.2d 419 Custody 1995).22 majority’s 61. The Miller-Jenkins reinterpretation only this Titchenal not expansion prior holding Court’s with the structure and intent of the language, conflicts statute, places Vermont outside of the modern trend but rela- recognizes legal law that connection and/or tionship legal parent significant always to a child’s are but essential factors in the determination.

II. has left it to this Having recognized Legislature defining parenthood, Court to articulate a framework for factors, if any, task in this case is to determine what are Court’s factor, If or collection necessary parentage. single to a claim of no factors, is what factors are relevant to the consid- dispositive, eration, weight? and what their relative recognized can The American Law Institute has likewise conduct, Inst., biology Am. L. arise from intentions and rather than ties. (2002). Family § Principles Law of 2.03 Dissolution

A. ¶ above, 63. As set forth our case law makes it clear that a connection biological parent between and child is not a necessary See, Columbia, prerequisite status. e.g., 2013 VT ¶ 29 n.2 that (explaining genetic connection with child is neither necessary However, nor sufficient to establish parentage). the fact connection undoubtedly relevant to the because, analysis recognized, as we have biological connec- “[a] tion . . . opportunity creates the a parent-child establish not, itself, but is relationship, by tantamount to parenthood.” Id. 304(b) (results 23; § see also 15 V.S.A. of a genetic test relevant to determination of parentage).

¶ Moreover, we have said that a formal legal relationship between a putative parent and a child’s legally recognized parent at the time of birth “extremely is an factor persuasive” supporting Miller-Jenkins, parentage. 78, 58; 2006 VT see also 15 V.S.A. 308(4); 1204(f). § § 15 V.S.A. ¶ 65. recognized We have also that presence the of an estab- —

lished relationship merely bond, a close but a relationship by understood — the parent and child as a parent-child can be a significant and in some cases overriding factor in analysis. Godin, the In Godin this Court considered a post-judgment motion in a divorce case in adjudicated which an father sought genetic testing because rumors within the had him caused suspect the child he had raised during marriage was not his biological offspring. (1998). Although this Court’s affirmance of the trial court’s

refusal to reopen the final adjudicated divorce order that father’s parentage was based primarily on considerations of final- ity, this Court acknowledged the significance of an established parent-child relationship, even in the absence of a biological connection: “Although we plaintiff’s understand interest in ascer- taining the genetic child, true makeup agree we with the many jurisdictions holding the financial and emotional welfare child, of preservation of an established parent-child relationship, must remain paramount.” Id. at 725 A.2d at 910. Noting that the adjudicated father had raised the child as his own — years fourteen eight during the marriage, and six as a — wrote, noncustodial thereafter this Court “It is thus readily apparent formed, that a parent-child relationship was test, that of a genetic not the results relationship, it is that 524, 725 A.2d at 911. control.” must — the factor closely related likewise found have 66. We and exercised has assumed putative to which a extent In analysis. relevant parenthood responsibilities father had Columbia, fact that the we concluded child establish- for the responsibility to “take no efforts made or as- nurturing, offering support, relationship, providing ing claim, even his undermined legal rights” his serting ¶ Columbia, 2013 28. link. VT biological potential the face to assume the father’s failure putative to the pointed we Although claim to undermining his as a factor of parenthood mantle denying In holding ways. cut both our parentage, test, affirmed implicitly we genetic for a request father’s acknowledged parenthood, of a father who had status parental child as and raised the parenting, responsibilities accepted adjudication to the years prior parentage his own for several married to the child’s that he was not the fact notwithstanding analysis of our mother, purposes for the assuming and even ¶ child. 2. connected to the genetically was not he ¶ intentions and parties’ considered the Relatedly, we have parent. who is a discerning factors important as expectations ¶ ("We Miller-Jenkins, the result this adopt 2006 VT 57 See the intent of the and to policy, implement a matter of case as at the time shared intention parties’ In addition to the parties.”). their actions and we have considered conception, of a child’s See, e.g., the child. raising to the broader world representations treated Janet id. 56 fact that both Lisa and Janet (considering a relevant factor break-up to their as parent prior as child’s Godin, at 910 analysis); (“Where himself out as the child’s father has held presumptive relationship for a in an engaged ongoing parent-child parent, destroy may he not disavow period years, .”). . . . long-held assumptions a child’s or absence of a to the pointed presence we have Finally, analysis. factor in the status as a parental claimant

competing Miller-Jenkins, (“Finally, there is no See, 56 VT e.g., result, and, negative as a parent, status of other claimant to the Godin, only parent.”); one child] would leave [the decision in favor finding that a n.3, (noting A.2d at 911 n.3 at 524 Vt. would leave to disavow his seeking of the child without the benefit of a second parent, and the associated economic and emotional well-being).

B. ¶ 69. These factors are not inconsistent with factors identified by jurisdictions other bearing on the question of who qualifies parent. as a ifMost not all of the tests applied by the various courts the out-of-state cases cited above revolve around com- mon Many themes. of these cases use the terms “de facto parent” or “psychological parent” to describe parent whose rela- tionship with a child derives from the intentions and actions of the parents, a parent’s assumption duties and relations for an time, extended period of the formation of a significant and/or parent-child bond. Although this Court rejected has a claim of de facto parenthood in the context of equitable action in the court, then-superior Titchenal, 389-90, see 166 Vt. at 693 A.2d at 692, the considerations other courts have upon relied in determin- ing qualifies who for parental recognition under their own laws in the absence of adoption or biological connection are helpful Court’s task of determining who qualifies as a parent under Vermont’s parentage statute. The Washington Supreme Court has adopted test, the most common first articulated the Wisconsin Supreme Court: To establish standing as a de parent we adopt the facto (1)

following criteria . . . : the natural or legal parent consented to and (2) fostered the parent-like relationship, the petitioner and the child lived together in the same (3) household, the petitioner assumed obligations of par- enthood without expectation of financial compensation, (4) and petitioner the has been in a parental role for a length of time sufficient to have established with the bonded, child a dependent relationship, in parental na- addition, ture. In recognition of a de parent is facto limited to those adults who fully have and completely undertaken a permanent, unequivocal, committed, and responsible parental in role the child’s life. ¶ L.B.,

In re 122 P.3d 40 (quotation omitted); and citation see also H.S.H.-K., In re Custody 533 N.W.2d at 421. A parent in the state of Washington who satisfies these criteria stands the same shoes legally other recognized parent, whether ¶ L.B., 41. otherwise.23 In re 122 P.3d biological, adoptive, in a analysis specific has not framed its this Court Although above, embedded in the factors that set forth test like multi-part factors this analysis echo the court’s Washington the Miller-Jenkins, Godin, upon relied previously has Court Columbia. Court concluded Jersey Supreme Similarly, 70. the New to a related biologically who is neither cases a some at the

child, recognized the child’s legally joined nor birth, responsibili- the may acquire of the child’s time M.J.B., for that child. V.C. parenthood of legal ties through conceived case, raised twins couple In that a lesbian They did breaking up. years for two before donor insemination legal rights to secure the adoption go through second-parent However, biologi- mother. nonbiological of the obligations cultivated, way, development every “fostered and cal mother and the nonbiological mother] bond between [the Id. In particular, together all lived the same “they twins.” assumed nonbiological mother] . . . family; household as [the toward the day-to-day obligations parenthood many of the twins, ... a bonded support; financial including and the twins that developed nonbiological mother] between [the in nature.” Id. The court concluded in the parental [was] and visita- respect custody mothers with contest between the and the tion, legal parents is that of two legal paradigm “the of the child.” is the best interests applied standard be to this conclu- jurisprudential path that court’s Although — in this case the New applicable from the route sion different upon “psychological parent” Court relied Jersey Supreme — id. law, at 549-50 circumstance” case “exceptional of its branch set forth above. court’s reinforces the considerations reasoning L.B., in the case of In re Supreme Court Washington Like the first laid out court embraced the test Jersey New authority Washington to award or visitation to of the court’s The source nonbiological, nonadoptive than the source was different recognized authority Washington common law “the in this case State’s court’s statutory recog may parent-child relationships otherwise lack significance of nonbiological, status extension nition” and authorized L.B., 161, 20, claim here nonadoptive parents, 122 P.3d whereas defendant’s In re “parent” central status of statute which leaves the is based on Vermont’s analysis Nevertheless, Washington court’s the factors woven into undefined. apply in this context as well. Supreme

Wisconsin Court. Id. at 551 (citing In re Custody of 419). H.S.H.-K., 533 N.W.2d at Jersey New court elaborated on the Wisconsin test several critical ways. respect With to the prong, first the legal parent’s fostering or consenting to the parental relationship, the Jersey New Supreme Court noted:

Obviously, the notion of consent will have different implications in different factual settings. For example, where a legal parent voluntarily absents physically herself emotionally or from her child is incapable perform- ing duties, her parental those may circumstances consti- tute consent to parental role of a third party who steps into her shoes relative to the child.

Id. at 552 n.6.

¶ Moreover, the court explained that, although putative parent’s participation in the decision to have a child probative of the parties’ intentions, such participation is not essential to a finding of legal parenthood:

Such circumstances parallel the situation in which a woman, already pregnant mother, or a becomes involved with or marries a man who is not the biological or adoptive child, father of the but thereafter fully functions in every as a respect father. There is nothing about scenario that would justify precluding the possibility of denominating person as a psychological parent. It goes without saying that adoption proceedings these circumstances would eliminate the need for a psychologi- cal parent inquiry altogether and would be preferable to court However, intervention. the failure of the parties to pursue that option is not preclusive of a finding psychological parenthood where all the other indicia of that status are present.

Id. at 553.24 Finally, the court explained that right “the legal parent does not extend to erasing a relationship between her partner and her child which she voluntarily created and actively 24The parallels scenario described here adjudicated the circumstances of the father challenged by whose were biological father in the case of Lawton, Columbia v. implicitly which we adjudicated affirmed the father’s derogation status in of that of Columbia, the claimed father. ¶2, 2013 VT parties’ separation regretted because after the she simply fostered omitted). (quotation so.” Id. at 552 having done ¶ decision the Jersey Supreme recognizing 73. The New Court’s who, a nonbiological parent biological with the parental full parent’s participation, range consent and assumed the herself out as the child’s parental responsibilities parent, and held exceptional. Supreme is not The Judicial Court of Maine has full status of a recognized parental putative parent likewise the in a a in parental capacity throughout who acted child’s life D.E.W., in that C.E.W. ME 43. The issue case was nonbiological rights sprang whether the mother whose from her in coparent throughout status as the child’s her life stood parity mother for purpose the the of a determi nation. The court affirmed that she did. Id. 11. respect With the of the for a question underlying qualifications parental such status, said, the court ultimately “However term is defined as future, it is fleshed out in Legislature the or the courts the it must surely fully be limited to those adults who have and committed, completely permanent, unequivocal, undertaken and responsible parental role the child’s life.” Id. 14.25 ¶ 74. Virginia The West Court it Supreme similarly defined what “a called whose psychological parent,” relationship with a child is subject greater protection custody matters than would for a ordinarily nonbiological, be the case nonadoptive parent: who, is a psychological parent person [A] on a continuing basis, interaction, day-to-day through companionship, in- terplay, mutuality, and fulfills a psychological child’s and for a physical parent provides needs for the child’s emotional and financial support. psychological The parent may be a biological, adoptive, or foster or parent, any other person. resulting between relationship the psychological parent substantial, and the child must be of requiring The American Law Institute has framed the test (i) parent significant period years, “for a of time not less than two lived with the (ii) and, primarily compensation, child for reasons other than financial and with the agreement legal parent parent-child relationship, to form a or as a result of complete inability functions, legal parent perform caretaking failure or (A) (B) regularly performed child, majority caretaking functions or regularly performed caretaking great a share of functions at least as as that of the Inst., primarily Principles with whom the child lived.” Am. L. of the Law 2.03(1)(c) (2002). Family § Dissolution must temporary, begun duration and have with the encouragement

consent and of the child’s or guardian. K.,

In re 619 S.E.2d Clifford I purport specific do not to recount tests applied many each of the decisions recent decades in which courts have responsibilities beyond biological extended par- I ents. review the above cases because I believe they reinforce develop further our own case law that has identified intent of the legal putative parents both to foster a parent- child, child between putative parent conduct and contributions of both caring raising for and child, way in which hold they putative parent out to the broader world as a parent, presence child’s and the or absence of legally recognized other parents26 as factors in addition to biological connection and a legal relationship with a child’s legal — that parent are relevant to the of question putative whether a Miller-Jenkins, parent should be recognized legal parent. See 78, 56; Godin, 2006 VT 168 atVt. 725 A.2d at 910.27 question presence need not legal parents We address the of whether the of two Wald, putative parent’s Parentage defeats a third claim. See D. Puzzle: The Genetics, Intent, Interplay Between Procreative and Parental Conduct In Deter mining (2007) Legal Parentage, Pol’y Am. U. J. Gender Soc. & L. 406-10 (arguing legal recognition parents of more than two in certain limited circumstances). case, purposes For the of this and of our discussion of this factor cases, past parent legally significant the absence of even a second is a factor in parentage analysis. the 27Although many parents, of the cases cited herein involved same-sex courts have applied analysis by putative See, the same e.g., claims fathers. Middleton, (allowing 633 S.E.2d at 167 claim for visitation mother’s ex- boyfriend developed parent-child relationship encouragement, who with mother’s time); Atkinson, and with whom child lived half the Atkinson v. 408 N.W.2d (Mich. 1987) App. (nonbiologieal putative Ct. father entitled to seek where he relationship and son had a close and affectionate father-son cultivated participation, only with mother’s he was active in son’s life and was the father son known, prepared rights responsibilities had ever and he was to take on the of child); supporting M.J.B., (analogizing the see also V.C.v. 748 A.2d at 552-53 case involving acknowledged putative involving acknowledged mother and mother to one father). putative Nothing logic mother and about the of our own reliance on factors beyond biology legal relationship parent and a parent between the fay parents. limited to claims protection same-sex The best interests of children in relationships genders established with their do not turn on the parents.

C. unfounded concerns about likely but I to address digress through established ascertaining parentage framework for First, it does not to this case. existing prior case law Court’s fit, That is a legal parents. parental undermine are criticism; here is who question the threshold circular nonbiological of a Recognition parental parents. threat case is no more an unreasonable appropriate in an parent’s than enforcement of a second to the other parent’s rights.

¶ Moreover, undertaken in its analysis this Court has above, date, not invite unwar- as described does precedents legally intrusion into the constitutionally judicial suspect ranted or As legal parent. between the child and protected explained: Court Jersey Supreme the New on viewed as an incursion opinion This should be of a fit to raise his or her general right legal parent ad- outside interference. What we have child without involving specific here is a set circumstances dressed to cede a measure legal parent the volitional choice of party to a third to allow that parental authority party; child; day-to-day in the life of the to function as to foster the bond between the forging circumstances, child. In such party third and the with the third legal parent party has created child, third into the party and the and has invited the virtue of family privacy. By otherwise inviolable realm of actions, of autono- legal parent’s expectation her own in her with her child is neces- privacy mous from that which would have been the case sarily reduced lives. party had she never invited the third into their its conse- Most where that invitation and important, by essentially giving her child’s life quences have altered legal parent’s options him are parent, or her another that is preemi- It is the child’s best interest constrained. if were in a conflict legal parents

nent as it would be two visitation. over v. M.J.B., Middleton, 553-54; 633 A.2d at see also S.E.2d

V.C. 748 (“[W]hen a invites a third into child’s legal parent party at 169 life, essentially providing and that invitation alters a child’s life

him with parent, another the legal parent’s rights unilaterally reduced.”). sever that relationship necessarily are Washington 78. The Supreme Court has expressly likewise rejected the notion that its recognition parental person biologically child, neither related to a nor legally joined parent, the child’s represents a step slippery down a slope nannies, teachers, could come to include adult siblings, or parents’ exes: threshold requirement

[A] ... is a showing that parent “consented to and fostered” the parent-child re- The lationship. State is not interfering on behalf of a third party an insular family unit but is enforcing the obligations of parenthood that attach to de parents; status that can be achieved only through facto the active encouragement of or adoptive parent by affirmatively establishing a family unit with the de parent and child children that accompany facto family. L.B., (citation

In re 122 P.3d omitted); see also Middleton, 633 at S.E.2d 169 (recognizing that parenting conduct of putative parent “must be done for reasons other than financial gain, guarantees which that a paid babysitter or nanny cannot qualify” for parental rights).

¶ 79. Although this Court has not elaborated on the prerequi- sites to a showing that a recognized parent has consented to another’s acting as it parent, is clear from the contexts in which we have on relied a putative parent’s established relationship with a child aas factor supporting parentage that the requisite level of engagement is indistinguishable from that of any other legally recognized parent, and that the participation of the recognized promoting relationship between the child and putative See, parent is essential. e.g., Miller-Jenkins, 2006 VT ¶78, 56 (noting that putative mother co-parented birth, child from and both parents held mother out as the child’s other Godin, parent); at Vt. A.2d 910 (relying on fact own, father raised child as his and he and child’s mother held father’s). child out requirements for and limitations on ability of a nonbiological, nonlegally joined putative establish rights reflected in the above decisions from other courts should and apply do with equal force here. To the that this “would allow majority suggests approach extent the biological to a to defend partner compel parent former domestic claim that he or she is a ex-partner’s the unrelated against ” ante, majority recognize high fails bar ‘parent,’ link biological a with no to the child or putative parent faced parent. link to the child’s legal in reject judicial I the notion that the name of Finally,

efficiency, avoiding litigation, we should arrest and dial back case-by-case considering identifying our factors approach in very bright that determine status favor of a narrow requires line that either a connection or a rela- tionship support with a birth a claim of parenthood. in Doing so cannot be the best interests of children possibly an parent- because it denies a class of children with established a relationship nonbiological parent legally joined child — acknowledged parent with their formed with the participation acknowledged parent legal protection the children’s for their financial, with that parent, depriving them See In re emotional and developmental support parent. B.L.V.B., 160 Vt. at 628 A.2d at 1274 (construing adoption children). in way statute the best interests of promotes ¶ Moreover, narrow, the notion of this bright-line kind in rule the context of and child disputes instructions, Per the incongruous. Legislature’s Vermont’s courts multi-factorial, already apply case-by-case analysis of the best parental rights interests of children to determine and responsi- bilities and contact in every divorce and § in which these case matters are contested. See 15 V.S.A. 665. This is an area in which the law recognizes wide variation circumstances, and the need for an flexibility fashioning order that best suits the best specific needs and interests of each individual child. Legislature easily could have chosen to reduce and make litigation custody determinations more efficient of, by establishing presumption conclusive favor for example, Harris, has not. Harris v. It primary caregiver. established (1988). 410, 418, Instead, requires Vt. the law a court consider each of a host of designated factors assigning parental responsibilities. Against narrow, backdrop, application bright-line rule that has the preventing getting effect of from even to the best analysis very interests small class cases issue here is incompatible general with the approach protecting children reflected in our divorce and parentage statutes. majority’s 82. Nor is the approach likely to channel human

behavior in a Although adoption by desirable direction. nonbiologieal parent preferable would have been in a case like this, most do not people generally study legal in precedents ordering their family relations. Their failure to do so should not operate to the detriment minor who had no in say children the matter.

III. ¶ 83. The final task to apply is the above considerations to the facts of this case. The standard of huge review makes a difference here. This Court is not reviewing trial court’s findings based on evidentiary hearing. Nor is it reviewing summary judgment ruling based on undisputed disputed facts and facts viewed in light most favorable the nonmoving party. The trial court dismissed putative father’s claim here on the pleadings. 12(b)(6) “Dismissal under Rule only is it proper beyond when doubt there exist no facts or circumstances consistent with the complaint that would entitle the plaintiff relief.” Bock v. Gold, 81, ¶ 4, 575, (mem.). 2008 VT 184 Vt. 959 A.2d 990 plaintiff threshold a must in cross order to meet the notice- pleading omitted). standard is “exceedingly low.” (quotation Moreover, in reviewing the trial court’s grant of a motion to dismiss, this Court must all alleged take facts in complaint Ames, 288, 291, (1997). true. Amiot v. case, In putative father alleged has that both children call him “daddy or papa,” that he was in delivery room when M.S. was born and was one her; of the first people hold he has been involved L.M.’s life since she was six months old and — M.S.’s since birth participating respective their steps, first words, first milestones; other developmental even before moving mother, with the children’s he visited L.M. and M.S. almost every day during life; the first six months of M.S.’s he lived with mother and the from children the time M.S. was about old, six months August 2009; through March he changed diapers, tended to them they when cried in the middle of the night, and did all things a good father does when needed child; his her he was involved with preschool M.S.’s program- he ming; went to all school and ballet performances in which involved; all the basic necessities for provided child was he either food, paid and also for clothing, such as shelter and the children mother and the children supplies; lessons and school ballet after spent until he about 600 April moved out in March 2009 children; April their days of the next 730 with days days to live with him at least six voluntarily mother left them 2012; frequently until mother nearly year March week scheduled visits with the regular cancelled or no-showed for her removed during period; abruptly children time and mother they attending living children from the schools were while in the only remaining father with three months term. far than notice of his provided 85. Father has more bare

claims; allegations potentially he has made extensive that could if judge We cannot this case as his support finding parentage. undisputed subject summary judgment were facts allegations review; develop Although father has not had a chance to his case. unquestionably showing he faces substantial hurdles he link to must make the absence of a the children — I legal relationship challenging to their mother is a one it given allegations beyond cannot conclude that the above that doubt father cannot muster sufficient evidence make I and remand for further showing. proceedings. would reverse confronted with a question When unanswered Legislature, Legislature’s our task is to do our best to discern the majority intent and rule I it accordingly. got wrong. believe matters, we are not the last in such Thankfully, word Legislature power pass has the laws ensure other children in L.M. and circumstances are not denied the M.S.’s financial, emotional, continuing developmental support of one biological parent of their actual because their has “pulled rank” promoting and denied the other’s status after the child for most or all cultivating parent’s relationship with in this If years. majority’s the children’s lives case six stand, children, for some analysis consequences were M.S., short of potentially including nothing L.M. would be tragic.

Case Details

Case Name: Moreau v. Sylvester, Sylvester v. Moreau

Court Name: Supreme Court of Vermont

Date Published: Apr 4, 2014

Citation: 2014 VT 31

Docket Number: 2012-152 & 2012-154

Court Abbreviation: Vt.