Maureen V. RUBANO v. Concetta A. DICENZO
No. 97-604-A.
Supreme Court of Rhode Island.
Sept. 25, 2000.
759 A.2d 959
Rosina L. Hunt, Woonsocket, Maureen Slack DiCristofaro, Richard S. Cardozo, Cumberland, Donna M. Nesselbush, Providence, Mary L. Bonauto, Boston, MA, for defendant.
Present: WEISBERGER, C.J. LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
OPINION
FLANDERS, Justice.
Two women agreed to become the parents of a child. They arranged for one of them to conceive via artificial insemination by an anonymous donor. Following the child‘s birth, they raised him for four years while living together as domestic partners in the same household. Thereafter the women separated but the biological mother agreed to allow the nonbiological parent to have informal visits with the child. Under these circumstances, does the Family Court have jurisdiction over a petition brought to determine the existence of a mother and child relationship between the nonbiological parent and the child? If so, can the Family Court enforce the domestic partners’ written agreement (embodied in a consent order previously entered by the court) to allow the nonbiological parent to have visitation with the child after the parents have separated? These are questions of first impression in Rhode Island. For the reasons related below, we answer both of them in the affirmative.
Facts/Travel
In 1988, plaintiff Maureen V. Rubano (Rubano) and defendant Concetta A. DiCenzo (DiCenzo) entered into what they characterize as a “committed relationship.” Eventually they set up house together as domestic partners in Massachusetts. Three years later, still “more at love than law,”1 they decided to have and raise a child. Accordingly, they arranged for DiCenzo to conceive via artificial insemination by an anonymous donor. In 1992, DiCenzo gave birth to a son. Thereafter, acting together with Rubano, she caused his last name to be listed on the birth and baptismal certificates as Rubano-DiCenzo and sent out printed birth announcements identifying both of them as the child‘s parents. Although Rubano never adopted the child, for four years she lived together with DiCenzo and both of them raised the boy as their son. In 1996, however, the couple separated. Taking the boy with her, DiCenzo moved to Rhode Island.
Initially the parties set up an informal visitation schedule for Rubano to see the child. But in 1997 the schedule collapsed in the face of DiCenzo‘s resistance.
DiCenzo, however, allegedly reneged yet again on the visitation agreement by
Question I
“Does a child, biological mother, and same sex partner, who have been involved in a committed relationship constitute a ‘family relationship’ within the meaning of
The Family Court has asked us to rule on whether it has the power to adjudicate Rubano‘s petition to determine her de facto parental status and to enforce the parties’ visitation agreement under the Family Court‘s
Asserting that the above-referenced “family relationship” language in
Upon reviewing the statutory language at issue, however, it is immediately apparent to us that this portion of
Accordingly, to answer question one, we need not determine whether the parties’ involvement with each other and with the child constituted a “family relationship” within the meaning of this term as it is used in this portion of
Question II
“If the answer to the above question is in the negative, does such a conclusion violate Article I, section 5 of the Rhode Island Constitution?”
Article 1, section 5, of the Rhode Island Constitution provides, in pertinent part, as follows:
“Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which may be received in one‘s person, property, or character.”
Initially, Rubano argued that she had been injured and wronged by DiCenzo‘s refusal to acknowledge her parental status vis-à-vis the child and to abide by the parties’ visitation agreement.7 After the
A. Jurisdiction under § 15-8-26
The Family Court has jurisdiction to determine the existence or nonexistence of a mother and child relationship between Rubano and the child under
”Action to declare mother and child relationship.—Any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of this chapter applicable to the father and child relationship shall apply.”
Under this section, Rubano was an “interested party” because she claimed that she
Nevertheless, the dissent suggests that both the order and the parties’ settlement agreement (they became one and the same) “specifically negate any such right on Rubano‘s part to a claim of parentage adjudicated in court.” However, both the order and the parties’ settlement agreement were conditioned on the provision allowing Rubano to have visitation with the child. Thus, it hardly negates any such right on Rubano‘s part to have her parental-rights claim adjudicated; rather, it was simply a part of the court‘s order and the parties’ settlement agreement that she was giving up her right to claim parentage vis-à-vis the child in exchange for court-ordered visitation with him. Without court-ordered visitation, the waiver of Rubano‘s claims to parental rights would have no effect whatsoever.
Most significantly,
The dissent argues that “[t]he Pettinato Court‘s use of equitable estoppel as a shield to prevent [the biological mother] from attacking the presumption of paternity created by
Thus, if the Family Court were able to find that Rubano‘s alleged de facto parental relationship with the child, her asserted visitation agreement with DiCenzo, and the claimed need to prevent any harm to the child‘s best interests not only existed in this case but constituted clear and convincing evidence sufficient to overcome the otherwise applicable presumption in favor of honoring a fit custodial parent‘s determination not to allow such visitation, see Troxel, 530 U.S. at —, 120 S. Ct. at 2062, 147 L. Ed. 2d at 60 (“the [state] court must accord at least some special weight to the [biological] parent‘s own determination“), then it could award visitation to Rubano under the ULP.
The dissent also refers to the Wisconsin case of In re Z.J.H., 162 Wis. 2d 1002, 471 N.W.2d 202, 212 (1991), in support of its position that “[t]he legal effects and consequences of statutory limitations cannot be avoided by estoppel.” But, apart from the fact that the Wisconsin Supreme Court has overruled this case,9 we do not use estoppel to avoid any statutory limitations. In Z.J.H., the Wisconsin Supreme Court found that because a former same-sex parent was barred by statute from claiming visitation or custody rights, she could not use estoppel to circumvent the law and pursue her claim in the face of a statute that precluded her standing. See id. at 211-12. Here, on the contrary, we have determined that a statutory basis does exist for Rubano‘s visitation claim under the ULP and that no other statute bars her from seeking such rights. Thus, we merely employ estoppel to prevent DiCenzo from challenging the alleged mother-child relationship between Rubano and the child based upon Rubano‘s lack of a biological tie to the child.
Moreover, the holding in Pettinato bears directly on the facts at issue here. In Pettinato, the child‘s biological mother attempted to use a de facto parent‘s lack of biological connection with the child to defeat a custody award to that parent. Even though, as the dissent notes, the Family Court in Pettinato acquired jurisdiction through the filing of a petition for divorce, its holding—that a nonbiological parent may be awarded custody over the objection of a biological parent—supports our conclusion here that such a nonbiological parent is eligible under
Though the dissent contends that
The dissent also suggests that our conclusion “that jurisdiction exists in the Family Court over Rubano‘s novel complaint filed pursuant to
Second, the dissent‘s reliance on Waldeck v. Piner, 488 A.2d 1218 (R.I. 1985), for the proposition that the “unequivocal aim” of our state‘s ULP was to provide a mechanism for enforcement of child-support responsibilities is not persuasive. The Court‘s discussion in Waldeck about the purpose of the ULP was in specific reference to
B. Jurisdiction under § 8-10-3
We also hold that Rubano was entitled to seek a remedy for DiCenzo‘s alleged refusal to provide her visitation with the child under the portion of
If the parties had chosen to litigate this matter to an adversarial conclusion instead of settling via the order, and if the factual allegations in Rubano‘s petition had been established, then Rubano would have been able to prove that she had been “involved with [the] paternity” of this child born out of wedlock within the meaning of this discrete jurisdictional provision of
In sum, we hold that Rubano was entitled to pursue her Family Court action against DiCenzo to determine her de facto maternal status vis-à-vis the child, to settle that action via the order, and to obtain relief for an alleged contempt thereof by DiCenzo that would bar her from violating the visitation terms of this order. The basis for our ruling is that, in the words of
C. Superior Court Jurisdiction
Alternatively, Rubano was entitled to seek a remedy in Superior Court for DiCenzo‘s alleged violation of the visitation agreement. See
D. Federal Constitutional Considerations
According to the United States Supreme Court, “it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions con-
Although DiCenzo‘s constitutional liberty interest in exercising freedom of personal choice to prevent unwanted third parties from exercising parental rights with respect to her natural child would be entitled to special weight in any contested visitation case because “there is a presumption that fit parents act in the best interests of their children,” Troxel, 530 U.S. at —, 120 S. Ct. at 2061, 147 L. Ed. 2d at 58, her interest is not an unqualified one because the rights of a child‘s biological parent do not always outweigh those of other parties asserting parental rights, let alone do they trump the child‘s best interests. See, e.g., Lehr v. Robertson, 463 U.S. 248, 261, 103 S. Ct. 2985, 2993, 77 L. Ed. 2d 614, 626 (1983). In Lehr, the Court held that a biological father who had not cultivated a relationship with his child or contributed significantly to the child‘s support had no standing to object to an adoption proceeding that the child‘s mother and her new husband had initiated. See id. at 250, 103 S. Ct. at 2987, 77 L. Ed. 2d at 619. The Court said that the biological father‘s mere genetic relationship to the child did not allow him to block a nonbiological parent‘s adoption of the child because of the “clear distinction between a mere biological relationship and an actual relationship of parental responsibility.” Id. at 259-60, 103 S. Ct. at 2992, 77 L. Ed. 2d at 625. Thus, a biological parent who has never shouldered any responsibility for the rearing of that parent‘s biological child does not have a constitutional right to veto the child‘s adoption by a nonbiological parent when that adoption is deemed to be in the child‘s best interest. Id. at 262, 103 S. Ct. at 2993-94, 77 L. Ed. 2d at 627; see also Quilloin v. Walcott, 434 U.S. 246, 256, 98 S. Ct. 549, 555, 54 L.Ed.2d 511, 520 (1978) (explaining that the biological parent “never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child” and thus his constitutional rights were of less weight than those of a married but nonbiological father who had “borne full responsibility for the rearing of his children during the period of the marriage“).
Moreover, under certain circumstances, even the existence of a developed biological, parent-child relationship such as that between DiCenzo and this child will not prevent others from acquiring parental rights vis-à-vis the child. See, e.g., Troxel, 530 U.S. at —, 120 S. Ct. at 2061, 147 L. Ed. 2d at 58 (“special factors *** might justify the State‘s interference with [the biological mother‘s] fundamental right to make decisions concerning the rearing of her [children]“); Michael H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 2333, 105 L. Ed. 2d 91 (1989). In Michael H., the Court held that a developed relationship within a family unit between a nonbiological parent and a child can, under certain circumstances, warrant more legal protection by a state than the equally developed relationship between the child and the biological parent outside the family unit because of “the historic respect—indeed, sanctity would not be too strong a term—traditionally accorded to the relationships that develop within the unitary family.” Id. at 123, 109 S. Ct. at 2342, 105 L. Ed. 2d at 106. Significantly, the Michael H. plurality opinion stated that “[t]he family unit accorded traditional respect *** is typified, of course, by the marital family, but also includes the household of unmarried parents and their children.” Id. at 123 n. 3, 109 S. Ct. at 2342 n. 3, 105 L. Ed. 2d at 106 n. 3. (Emphasis added.) Indeed “[t]he demographic changes of the past century make it difficult to speak of an average American family.” Troxel, 530 U.S. at —, 120 S. Ct. at 2059, 147 L. Ed. 2d at 55.
Legal recognition of a de facto or “psychological parent” and child relationship—notwithstanding the absence of any biological ties—also finds support in a recent decision of New Jersey‘s highest court. In V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539 (2000), the New Jersey Supreme Court held that the same sex partner of a biological mother who had assumed a parental role in helping to raise the biological mother‘s child had established a “psychological parenthood” with respect to the child and thus had a legal right to petition for custody and visitation. See id. at 555.
The New Jersey Supreme Court applied a four-part test to determine whether a “psychological parenthood” existed between a “third party” adult and a child:
“the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged.” Id. at 551.
While the first part of this test encompasses the estoppel element that we recognized in Pettinato, 582 A.2d at 913, the other three elements also provide useful criteria for evaluating whether a de facto parent-child relationship exists between an alleged psychological parent and a child. These criteria indicate that a given person‘s eligibility for “psychological parenthood” with respect to an unrelated child will be strictly limited to those adults who have served literally as one of the child‘s de facto parents. Thus, the New Jersey court‘s criteria preclude such potential third-party parents as mere neighbors, caretakers, baby sitters, nannies, au pairs, nonparental relatives, and family friends from satisfying these standards. Further, the court in M.J.B. explicitly stated that “a relationship based on payment by the legal parent to the third party will not qualify.” M.J.B., 748 A.2d at 552.
We also note that our position here is in harmony with the principles recently adopted by the American Law Institute (ALI) in its Principles of the Law of Fam-
Thus, we are not alone in acknowledging that “children have a strong interest in maintaining the ties that connect them to adults who love and provide for them,” an interest that “lies in the emotional bonds that develop between family members as a result of shared daily life.” M.J.B., 748 A.2d at 550. Because of the importance of these bonds, we recognize that, consistent with the statutory law of domestic relations in this jurisdiction, a person who has no biological connection to a child but who has served as a psychological or de facto parent to that child may, under the limited circumstances outlined above, establish his or her entitlement to parental rights vis-à-vis the child. See also In re Custody of H.S.H.-K., 193 Wis. 2d 649, 533 N.W.2d 419 (1995) (allowing former female partner of biological mother to invoke equitable power of the court to obtain visitation if the biological parent has interfered substantially with the other person‘s established parent-like relationship with the child); A.C. v. C.B., 113 N.M. 581, 829 P.2d 660 (App. 1992) (holding that an agreement by a biological parent with an unrelated person for custody and visitation of a child is enforceable if it is in the child‘s best interest).
The dissent cites to the decision of an intermediate California appellate court in West v. Superior Court (Lockrem), 59 Cal. App. 4th 302, 69 Cal. Rptr. 2d 160, 162 (1997), as evidence that our reading of
In sum, the mere fact of biological parenthood, even when coupled with the biological parent‘s ongoing care and nurture of the child and that parent‘s fundamental right “to make decisions concerning the care, custody, and control of [his or her] children,” Troxel, 530 U.S. at —, 120 S. Ct. at 2060, 147 L. Ed. 2d at 56, does not always endow the biological parent with the absolute right to prevent all third parties from ever acquiring any parental rights vis-à-vis the child. Thus, the fact that DiCenzo not only gave birth to this child but also nurtured him from infancy does not mean that she can arbitrarily terminate Rubano‘s de facto parental relationship with the boy, a relationship that DiCenzo agreed to and fostered for many years. Indeed, when DiCenzo agreed to give Rubano permanent visitation rights in the order, she admitted that she did so because, among other reasons, such visitation “is in the best interests of the minor child.” Conversely, the fact that Rubano is not a biological parent does not necessarily relieve her of a potential legal obligation to support the child. See Pietros v. Pietros, 638 A.2d 545, 548 (R.I. 1994) (holding that a court may impose child-support obligations on a husband who is not a child‘s biological father). Hence, even if the order had not existed, Rubano would have been entitled to prove that she qualified as a de facto or “psychological” parent to the child and that she was, therefore, eligible for visitation rights and subject to child-support obligations.
For these reasons, DiCenzo‘s constitutional rights as the child‘s natural mother to superintend his future upbringing and his associations with adults other than DiCenzo are not absolute. By her conduct in allowing Rubano to assume an equal role as one of the child‘s two parents, and by her conduct in agreeing to and signing an order that granted Rubano “permanent visitation” rights with the child because it “is in the best interests of the minor child” to do so, DiCenzo rendered her own parental rights with respect to this boy less exclusive and less exclusory than they otherwise would have been had she not by word and deed allowed Rubano to establish a parental bond with the child and then agreed to allow reasonable visitation. Cf. Pettinato, 582 A.2d at 913 (holding that a mother who, by her conduct, had acknowledged a person to be the child‘s parent, was equitably estopped from challenging “the status which he or she has previously accepted [or created]“) (quoting John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380, 1386 (1990)). Under these circumstances, we do no violence to DiCenzo‘s constitutional rights when we hold that Pettinato‘s estoppel doctrine precludes her from denying the existence of a “presumption [of parental rights] that she helped to bring about.” 582 A.2d at 912.
Question III
“If the answer to question 1 is in the affirmative, then does a non-biological partner, who has been a same sex partner with a biological mother have standing to petition the Rhode
Because we have answered question no. I in the negative, we are not called upon to answer question no. III and we therefore decline to do so. In our response to question no. II, we held that concurrent jurisdiction in this type of case lies both in the Family Court and in the Superior Court. Based upon the allegations in Rubano‘s petition, we have concluded that she possessed the requisite interest and standing to file her petition asking the Family Court to determine her parental status and to enforce her visitation agreement. Accordingly, the Family Court has jurisdiction to enforce the order.
Conclusion
For the reasons stated above, we answer question no. I in the negative. And because Rubano may obtain the relief she seeks, including enforcement of the order, both in the Family Court (under its jurisdictional provisions pertaining to matters involving maternity, paternity, and children born out of wedlock), and in the Superior Court (under its general equitable jurisdiction), we also answer question no. II in the negative. As a result, because we are not called upon to answer question no. III, we decline to do so. Finally, we note that DiCenzo‘s constitutional rights as a biological parent to prevent third parties from exercising parental rights vis-à-vis her child are not absolute when, as here, the best interests of the child are at stake and DiCenzo‘s conduct equitably estops her from objecting to Rubano‘s court-ordered visitation—especially after DiCenzo has agreed to Rubano‘s having “permanent” visitation with the child in an order that settled Rubano‘s petition to obtain legal recognition of her de facto parental relationship with the child.
The papers in this case shall be remanded to the Family Court for further proceedings consistent with this opinion.
BOURCIER, Justice, with whom Chief Justice WEISBERGER joins, concurring and dissenting.
In this proceeding, three questions of law deemed by the Chief Judge of the Family Court to be of such doubt and importance as to affect the merits of a pending complaint in that Court have been certified to this Court pursuant to
The majority opinion in this case will be noted not for what it says, but instead for what it does. In responding to the certified questions, the majority has:
1. modified and changed the universal and ages old definition of “paternity.” That word now, according to the majority, merely implies the state of being a father;15
2. judicially legislated an amendment to
3. recognizes the right of unmarried same-sex partners to confer jurisdiction by estoppel on the Family Court to entertain miscellaneous petitions to adjudicate private agreements and/or disagreements between the unmarried persons;
4. construes and interprets the words mother and father in the Uniform Law on Paternity to be interchangeable, thus recognizing for the first time in this jurisdiction or in any other jurisdiction that a man can become pregnant after intercourse with a woman and then require the woman to pay for his hospital and delivery expenses;
5. recognizes private child visitation agreements between a biological parent and a third party same-sex partner to be assignable by that third party to other parties and, if not assigned, to be binding upon and inure to the third party‘s heirs and successors; and,
6. permits and recognizes that a minor child whose biological mother engages in same-sex unions may legally have as many mothers as the biological mother chooses to cohabitate with.
Facts
In this proceeding, the plaintiff is Maureen V. Rubano (Rubano), a fifty-three-year-old resident and domiciliary of Massachusetts. She is an assistant professor of clinical psychiatry at the University of Massachusetts, as well as a director of psychological services and training at Westborough State Hospital in Massachusetts. Additionally, as a neuropsychologist, she treats patients for psychiatric problems at both institutions. The defendant in this proceeding is Concetta A. DiCenzo (DiCenzo), a Rhode Island resident.
Rubano and DiCenzo, both who resided in Massachusetts, decided in 1988 to become live-in partners, and took up residency together in Millville, Massachusetts. Three years later, as noted in the majority‘s opinion, by means of artificial insemination by an anonymous donor, DiCenzo became pregnant, and on December 15, 1991, she gave birth to a boy. The child‘s birth certificate names DiCenzo as the mother. Understandably, the father is not identified.16
In 1993, Rubano hired Massachusetts counsel to draft a “parenting agreement” between her and DiCenzo with the intention of memorializing her rights relating to the young baby. DiCenzo, however, refused to execute the parenting agreement, which would have granted Rubano parental recognition or rights. DiCenzo additionally refused Rubano‘s later request to adopt her son.
Shortly thereafter, the live-in relationship cooled, and by early 1996, it had fizzled and frozen. DiCenzo left Rubano, left Massachusetts, and came with her then four-year-old son to live in Rhode Island. Subsequently, Rubano would come to Rhode Island to visit with DiCenzo‘s child. However, in February 1997, DiCenzo, believing that the visits were adversely affecting her son, told Rubano that she could no longer visit with him. One month later, Rubano came to Rhode Island and filed a miscellaneous petition in the Family Court. In that petition, Rubano sought to acquire a de facto parental relationship determination and status, and, as well, visitation rights with DiCenzo‘s minor child.
On May 19, 1997, the parties prepared and entered into a consent order that granted Rubano visitation rights with the child. The order specifically stated that “the parties entering into this Agreement do so out of concern for the emotional well-
Question I
“Does a child, biological mother, and same sex partner, who have been involved in a committed relationship constitute a ‘family relationship’ within the meaning of
G.L. § 8-10-3 , such that the Family Court has jurisdiction to entertain a miscellaneous petition for visitation by the former same sex partner when the same sex partner is no longer engaged in the committed relationship?”
I concur with and join with my colleagues who opine in their response to certified question No. I that
Question II
“If the answer to the above question is in the negative, does such a conclusion violate
Article 1, section 5 of the Rhode Island Constitution ?”
(a)
The Legal Considerations
With respect to certified question No. II, I part company with the response given to this question by my colleagues. They conclude that despite the absence of any filing of a petition for divorce or for separate maintenance by Rubano, nonetheless, the Family Court has been vested with jurisdiction by virtue of
The very first section in the ULP discloses what I believe to have been the General Assembly‘s clear intention for its enactment in 1979.18 That intention was to establish and identify the father of a child born in or out of wedlock, including “a child born to a married woman by a man other than her lawful husband,”
This Court in Waldeck v. Piner, 488 A.2d 1218 (R.I.1985) had occasion to review and pronounce the “unequivocal aim” of the General Assembly for enacting our ULP. We said that its purpose and aim was:
“to ensure that fathers support their children born out of wedlock.
Section 15-8-2 enables the mother, child, or appropriate public agency to bring a complaint to establish paternity, and upon such determination a specified support obligation can attach. The unequivocal aim of this statutory scheme is to provide a mechanism to enforce child support-responsibilities. This act must be distinguished from such legislation as the Uniform Parentage Act, adopted in other jurisdictions, that focuses upon paternity rather than support and establishes parental rights upon a finding of paternity. * * * [T]he purpose of the Uniform Paternity Act is child support * * *.” Waldeck, 488 A.2d at 1220-21.19
Accordingly, I respectfully suggest that the majority‘s conclusion that jurisdiction exists in the Family Court to adjudicate Rubano‘s novel complaint filed pursuant to
The particular wording of
The majority, it appears, has seen fit to mix together portions from the broad statutory language found in
The majority seeks to justify its ULP Family Court jurisdiction position by simply declaring that “we have determined that a statutory basis does exist for Rubano‘s visitation claim under the ULP and that no other statute bars her from seeking such rights.” That contention overlooks and completely ignores
As I read the ULP, and in particular the very first section of that Act,
All of the provisions in the Act applicable to “the father and child relationship” concern only natural (or biological) fathers, and fathers “presumed to be the natural [or biological] father of a child[.]” See
The majority, it appears, somehow seems to interpret the wording “any interested party may bring an action to determine the existence” of a mother and child relationship as permitting the Family Court to exercise jurisdiction over Rubano‘s unique and novel complaint seeking visitation rights with DiCenzo‘s minor child. See
In West v. Superior Court (Lockrem), 59 Cal.App.4th 302, 69 Cal.Rptr.2d 160, 162 (1997), the California Appellate Court construed the identical language as meaning and permitting only a “biological mother,” and not a former lesbian partner, to bring an action to determine the existence of a mother and child relationship. That interpretation, it appears to me, totally comports with the purpose intended by our General Assembly when enacting our ULP, and with this Court‘s previous holding in Waldeck.23
I also find nothing in Pettinato v. Pettinato, 582 A.2d 909 (R.I.1990), that serves to assist the majority‘s attempt somehow to draw from that case relevant support for their Family Court jurisdiction response to certified question II. Unlike the particular fact situation present in this proceeding, the Family Court‘s jurisdiction in Pettinato was, in the first instance, based upon and established by virtue of Mr. Pettinato‘s filing a petition for absolute divorce from Mrs. Pettinato. See id. at 910. The equitable estoppel doctrine employed by this Court in Pettinato was invoked against Mrs. Pettinato only to prevent her from attempting to assert her right to employ results of genetic blood testing, permitted by
The law still retains “a strong bias against ruling the children of married women illegitimate.” Michael H., 491 U.S. at 125, 109 S.Ct. at 2343, 105 L.Ed.2d at 107. In Michael H., the plaintiff sought to establish paternity to a child that was born of a woman who was married to another man. Despite the fact that blood tests indicated a 98.07 percent probability that Michael was the father, and the fact that Michael had established a parental relationship with the child, the Court recognized the woman‘s husband as the presumptive father of the child. “[E]ven in modern times—when * * * the rigid protection of the marital family has in other respects been relaxed—the ability of a person in Michael‘s position to claim paternity has not been generally acknowledged.” Id. The Court held that to establish paternity, Michael “must establish * * * not that our society has traditionally allowed a natural father in his circumstances to establish paternity, but that it has traditionally accorded such a father parental rights, or at least has not traditionally denied them.” Id. at 126, 109 S.Ct. at 2344, 105 L.Ed.2d at 108. The Court held that no case had yet done so. See id.
The Pettinato court‘s use of equitable estoppel as a shield to prevent Mrs. Pettinato from attacking the presumption of paternity created by
I submit that the majority‘s response to certified question No. II fails to recognize that the statutory restrictions placed upon the Family Court‘s special and limited jurisdiction cannot be avoided by estoppel. Additionally, the true purpose for application of principles of estoppel, including equitable estoppel, “is to prevent the assertion of what would otherwise be an unequivocal right * * * [and] operates always as a shield, never as a sword * * * [A]nd it does not of itself create new rights,” including the creation of rights to custody or visitation. In re Z.J.H., 162 Wis.2d 1002, 471 N.W.2d 202, 212 (1991) (quoting Utschig v. McClone, 16 Wis.2d 506, 114 N.W.2d 854, (1962)). See also 28 Am. Jur. 2d Estoppel and Waiver, § 31 (2000). In responding to certified question No. II, I believe that the majority is attempting to employ its equitable estoppel theory, not as a shield as in Pettinato, but instead to create a sword for Rubano to enable her to cut through
(b)
The Factual Considerations
In addition to the foregoing legal and statutory considerations, there also are additional factual matters present in this case that dictate my position concerning the absence of Family Court jurisdiction over Rubano‘s complaint under the ULP. The first factual issue is the so-called consent order that the majority erroneously refers to as having been entered by a Family Court judge following a “determination made by the justice that Rubano‘s visitation rights” with DiCenzo‘s biological child were “in the best interests of the minor child.” No such determination ever was made by the trial judge; instead, that determination had been made by the parties themselves in paragraph 10 of the private agreement between Rubano and DiCenzo.
Although the Family Court Chief Judge did permit entry of the consent order embodying the private agreement between Rubano and DiCenzo, a reading of the transcript of the December 2, 1997, contempt motion hearing reveals both the true genesis of the “best interests of the minor child” language referred to by the majority, as well as the total absence of any input, participation, or findings concerning the consent order by Family Court Chief Judge. Indeed, the Family Court Chief Judge actually disclaimed the consent order in question. He said “it wasn‘t the Court that entered the Order.” Rather, he said it was “a consent order entered by the parties on the 19th day of May 1997.” He also said he never participated in the discussion between the parties about their scheduling visitation rights, and further noted that the visitation scheduling was “strictly done by the parties without the assistance of the Court.” The so-called consent order in question certainly does not constitute “[a]n agreement of settlement with the alleged father” of the child involved in this unfortunate tug-of-war between Rubano and DiCenzo so as to comply with
My colleagues, I believe, are mistaken in writing that the Family Court Chief Judge reviewed and approved the terms of the consent order, and determined that such visitation rights “were in the best interest of the minor child.” The text of the transcript concerning the Family Court Chief Judge‘s statement is appropriately noted.
“THE COURT: * * * Now, we have Plaintiff‘s supplemental motion to adjudge the Defendant in contempt down today as well as objection filed by [defense counsel]. The Court must first indicate to the parties this matter was done by a consent order entered by the
parties on the 19th day of May 1997. It wasn‘t the Court that entered the order. It was the parties that came before the Court, and again the Court requested that the matter be certified by the Supreme Court. The parties took the approach they didn‘t want it certified. They went out and worked out a [visitation] schedule. I don‘t believe, and [plaintiff‘s counsel], you can correct me if I am wrong, I don‘t believe I participated in the discussion as far as visitation. MS. DICRISTOFARO: No, Your Honor. I believe we informed you of our discussion.
THE COURT: You came back to me and said you worked it out. I don‘t think I set any time of day.
MS. DICRISTOFARO: Absolutely not, Your Honor.
THE COURT: It was strictly done by the parties without assistance of the Court, although the Court asked for a question to be certified, and the parties decided not to do it.”
Thus, it appears from my reading of the transcript of the contempt proceedings that the Family Court Chief Judge simply entered the consent order prepared by the parties, at most, after only a cursory and exiguous reading of its contents. I also am hard-pressed to believe that had he carefully read the proposed consent order, he would have approved of its paragraph 8, wherein the visitation rights given to Rubano appear to be not only assignable, but also inure to her heirs and successors. I would additionally point out that although the majority believes that Rubano has requisite standing to have her claim adjudicated in the Family Court, Paragraph 9 in both her private agreement with DiCenzo and in the consent order specifically negate any such right that she now might claim to any parental relationship with the minor and biological child of DiCenzo.
Paragraph 9 in both documents provides that Rubano “now and forever, waives any claim or cause of action she has or may have to recognition as a parent of the minor child.” That express waiver, I believe, although premised upon her having rights of visitation with the child, eliminates any present right that she might now claim to a parental relationship with the child under the ULP. In any event, whether the Chief Judge of the Family Court entered the consent order after a cursory or comprehensive reading could have no effect whatever upon the jurisdiction of the Family Court. No doctrine is more well established than that which unequivocally states that the parties may not confer jurisdiction upon a court by agreement. See Paolino v. Paolino, 420 A.2d 830, 833 (R.I.1980).
Although I disagree with the majority, who believe that Rubano has requisite standing to have her claim adjudicated in the Family Court, I do agree that she retains her right to proceed directly against DiCenzo in a civil action to enforce her private agreement with DiCenzo. The validity of that agreement, while questionable, has not yet been officially challenged and remains a justiciable issue until determined otherwise.
Considering all the above, I would thus respond to the entirety of certified question No. II in the negative. That response, I suggest, would not in any manner intrude upon, or deprive Rubano of her right to litigate any claim that she may believe she has arising from the agreement that she entered into with DiCenzo, and would not serve to violate Rubano‘s rights under
“Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which may be received in one‘s person, property, or character.”
If, as I have noted earlier, Rubano believes that she has a valid and enforceable contract with DiCenzo, and if she believes
I believe it is essential to point out that the contract in question here is one that is in the nature of a private property settlement agreement that was entered into between Rubano and DiCenzo in the Family Court. The proceeding in that court had been commenced by the filing of a complaint in which Rubano sought to gain visitation rights with the minor and biological child of DiCenzo. Before the hearing on DiCenzo‘s motion to dismiss that complaint on jurisdictional grounds, the parties, who were never husband and wife, but instead, were former same-sex partners, then entered into the private settlement agreement that was later presented to the Chief Judge of the Family Court. The Chief Judge, without making any findings, simply entered the private agreement in the form of a pro forma consent order. Neither Rubano‘s complaint, nor her private settlement agreement with DiCenzo, effectively could serve to confer Family Court jurisdiction over Rubano‘s novel complaint. Jurisdiction cannot be conferred on the Family Court by consent of the parties. See Paolino, 420 A.2d at 833. Their private agreement, later set out in the form of a pro forma consent order, was not then, nor is it now, an antenuptial agreement or property settlement agreement. Nor was it a contract “between persons who at the time of execution of [the] contract[ ], were husband and wife or planned to enter into that relationship[;]” thus, it was not a matter over which the Family Court ever had specific and continuing exclusive jurisdiction to entertain pursuant to
This Court clearly noted in Riffenburg v. Riffenburg, 585 A.2d 627, 630 (R.I.1991), that a private agreement or contract that is not merged into a divorce judgment retains the characteristics of a private contract, and “the remedy for a party aggrieved by nonperformance of the contract is to sue for specific performance in a breach of contract action.” See also Attilli, 722 A.2d at 269. The consent order embodying the private contract that was entered into between Rubano and DiCenzo in this case, it must be noted, is based entirely upon the unprecedented complaint filed by Rubano, which cannot under any circumstances ever constitute a petition for divorce or separate maintenance, as required by
Although I am of the opinion that the agreement between Rubano and DiCenzo, as memorialized by the consent order en
In the recent case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the Supreme Court of the United States, in a plurality opinion, issued some very important admonitions to any court that might consider a right of visitation (contractual or otherwise) to which the biological parent might object. Justice O‘Connor, joined by the Chief Justice and Justices Ginsburg and Breyer, invalidated a visitation order entered by the Superior Court of the State of Washington pursuant to a Washington statute that would allow “any person” to petition for visitation rights at any time whenever it would serve a child‘s best interests. In that case, the grandparents, Jenifer and Gary Troxel, sought the right to visit their two granddaughters who were the biological children of their deceased son. See id. at —, 120 S.Ct. at 2057, 147 L.Ed.2d at 53. The facts of that case are not in any way identical to the facts at bar, but the principles enunciated serve as guidelines for any court that might be called upon to consider a complaint seeking visitation privileges in respect to a minor child whether based on contract or a previous relationship with the biological parent. Justice O‘Connor made the following significant comment:
“The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), we held that the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’ Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), we again held that the ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control.’ We explained in Pierce that ‘[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.’ Id. at 535, [268 U.S. 510] 45 S.Ct. 571 [69 L.Ed. 1070]. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Id., at 166, [321 U.S. 158] 64 S.Ct. 438 [88 L.Ed. 645].” Troxel, 530 U.S. at —, 120 S.Ct. at 2060, 147 L.Ed.2d at 56-57.
The plurality emphasized that a fit parent should be presumed to act in the best interests of his or her child. See id. at —, 120 S.Ct. at 2061, 147 L.Ed.2d at 58. Any person who seeks judicial intervention to obtain rights of visitation must overcome that presumption. See id. at —, 120 S.Ct. at 2062, 147 L.Ed.2d at 59. The plaintiff in such an action must satisfy the burden of proving that his or her claimed visitation right is in the best interest of the child and that the biological parent in resisting such a right is acting unreasonably. See id. at —, 120 S.Ct. at 2063, 147 L.Ed.2d at 60.
In another position of this somewhat fragmented series of opinions, Justice Souter, who concurred in the judgment, noted the dangers of judicial intervention on the basis of a judicial opinion that it could make a better decision than a child‘s parent had made. See Troxel, 530 U.S. at —, 120 S.Ct. at 2066-67, 147 L.Ed.2d at 64. He further admonished
With this caveat, I agree that the Superior Court would have jurisdiction at least to consider such contractual rights as might be advanced in an appropriate action by Rubano against DiCenzo.
Question III
“If the answer to Question I is in the affirmative, then does a non-biological partner, who has been a same sex partner with a biological mother have standing to petition the Rhode Island Family Court for visitation pursuant to
G.L. § 15-5-1 et al. [sic]?”
I would respond to certified question No. III in the negative. The Family Court‘s jurisdiction to permit rights of visitation to persons other than the biological or adoptive parents of a minor child specifically has been limited to grandparents and siblings of the minor child. See
In support of its responses to the certified questions, the majority opinion has cited to various cases. Because I believe that the majority has misconstrued part of the holdings in those cases, I note here each of the distinctions.
The majority cites to Hoxsie v. Potter, 16 R.I. 374, 377, 17 A. 129, 130 (1888) to support its assertion that this Court “has exercised equitable jurisdiction over suits involving child visitation and custody.” However, it appears that Hoxsie may have been overruled by Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In Hoxsie, an indigent, widowed mother placed her four children in the care of various relatives. See Hoxsie, 16 R.I. at 374-75, 17 A. at 129. When she remarried and became financially able to care for them, she sought their return. See id. The respondent refused to return the child that she and her husband were caring for. See id. The Court, noting that the mother had three other children and that the respondent was childless, held that the child should remain with the respondent. See id. at 377-78, 17 A. at 130. Although no allegations of the mother‘s unfitness ever were made, and although the Court implied that the mother was fit, the Court found that remaining with the aunt was in the child‘s best interest. See id. This is precisely the type of second-guessing that Troxel prohibits.
The majority also cites to Lubecki v. Ashcroft, 557 A.2d 1208, 1211 (R.I.1989) to support its proposition that, under its equitable powers, the Superior Court has concurrent jurisdiction to hear cases involving child visitation and custody. This ignores the exclusive jurisdiction granted to the Family Court in such matters where the contested custody and visitation must be related to petitions for divorce. See
In its opinion, the majority states that: “in holding, as we do, that the Family Court had jurisdiction to determine [Rubano‘s de facto parental relationship], we also join with the High Court in recog
That statement is somewhat misleading. By reasserting its holding in the same sentence as unrelated statements made by the United States Supreme Court, the majority seems to imply that the United States Supreme Court directly agrees with, and supports, the majority‘s holding in this case. That simply is not so.
In Troxel the Supreme Court referred only to “relatives” when referring to “persons outside the nuclear family.” Troxel, 530 U.S. at —, 120 S.Ct. at 2059, 147 L.Ed.2d at 55. The Supreme Court stated that “[t]he nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States’ recognition of these changing realities of the American family.” Id. at —, 120 S.Ct. at 2059, 147 L.Ed.2d at 55-56. The Court then acknowledged that “grandparents and other relatives undertake duties of a parental nature in many households * * *.” Id. at —, 120 S.Ct. at 2059, 147 L.Ed.2d at 56. (Emphasis added.) The High Court does not mention unrelated third parties when discussing duties of a parental nature. In Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), the High Court addressed the alleged constitutionally protected liberty interests of legal foster parents. Again, no mention of same-sex, de facto parents.
Another case relied upon by the majority is Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). In that case, Michael H. had a child by a married woman. When the child was three years old, Michael sought to establish his paternity. See id. at 114, 109 S.Ct. at 2337, 105 L.Ed.2d at 100. The Supreme Court affirmed the California Court of Appeals, which affirmed the trial court‘s finding that, under the California Paternity Act, the mother‘s husband was the presumptive natural father of the child. See id. at 132, 109 S.Ct. at 2346, 105 L.Ed.2d at 111.
In the present case, the majority appears to be relying on the Supreme Court‘s footnote statement in Michael H., that states that the “‘unitary family’ * * * also includes the household of unmarried parents and their children,” to support its notion that the parties in this case similarly are “unmarried parents” and, therefore, they come within the definition of a “unitary family.” Michael H., 491 U.S. at 123, n. 3, 109 S.Ct. at 2342, n. 3, 105 L.Ed.2d at 106, n. 3. Michael H. did not involve homosexual relationships; rather, it involved a paternity challenge. In addition, Michael H., makes no mention of de facto parents and, when taken in its proper context, any reference to parents is limited to natural/biological parents, married or otherwise. Indeed, the Supreme Court states that “California law, like nature itself, makes no provision for dual fatherhood.” Id. at 118, 109 S.Ct. at 2339, 105 L.Ed.2d at 103. At a minimum, this suggests that the Supreme Court might not approve of dual motherhood.
Another case cited by the majority is Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). LaFleur involved a challenge to the constitutionality of mandatory maternity leave rules where pregnant school teachers were forced to take maternity leave for a specified period whether they wished to or not. The “freedom of personal choice in matters of * * * family life” to
Finally, the majority relies upon Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), to suggest that DiCenzo‘s parental rights are not unqualified “because the rights of a child‘s biological parent do not always outweigh those of other parties asserting parental rights, let alone do they trump the child‘s best interest.” Lehr stands for the proposition that a developed, parent-child relationship between an unwed biological parent and his or her child is entitled to constitutional protection. The Supreme Court acknowledged that there is a “clear distinction between a mere biological relationship and an actual relationship of parental responsibility.” Id. at 259-60, 103 S.Ct. at 2992, 77 L.Ed.2d at 625. The majority uses this quote to support its contention that Rubano‘s relationship of parental responsibility with DiCenzo‘s child somehow trumps DiCenzo‘s objections to Rubano‘s visitation. However, the Supreme Court‘s statement was referring to the fact that a mere biological relationship, without more, does not support that parent‘s claim that he or she has a substantive due process right to maintain a parental relationship. Here, the biological parent, DiCenzo, has a fully developed relationship with her child; therefore, Lehr is not relevant and serves merely to confuse the issue.
Let us consider the implications of the majority‘s leap to confer jurisdiction upon the Family Court to entertain a petition for visitation by a person who neither has an adoptive nor blood relationship to the child (such as grandparent) based solely upon a prior homosexual relationship with the biological mother. Let us suppose that a man who was not the biological father of a child engaged in a heterosexual relationship with the unmarried mother of such a child. Let us further suppose that this man, the mother, and the child lived together for a period of years as a family unit. During that time, the live-in boyfriend contributed to the support of the child and assumed some of the duties of parenting. Nevertheless, he did not marry the child‘s mother and did not adopt the child. Would the majority give to this heterosexual partner the right to petition for visitation after the heterosexual relationship had been dissolved? In the event that the biological mother was not unfit and objected to this visitation because she had entered into a new relationship with another partner, would the Family Court have jurisdiction to entertain such a petition?
Conclusion
For the reasons stated, the Chief Justice and I concur with the majority in answering certified question No. I in the negative; we dissent from the majority in our answers to certified questions No. II and No. III. We would answer certified question No. II in the negative, and we would answer certified question No. III in the negative.