Lead Opinion
Thе issue in this case is whether the superior court may apply its equitable powers to adjudicate a visitation dispute that cannot be brought in statutory proceedings within the family court’s jurisdiction. We affirm the superior court’s decision that it does not possess the authority to adjudicate such matters.
The dispute arose after the breakup of a relationship between two women who had both participated in raising a child adopted by only one of them. Plaintiff alleges the following facts, which are disputed but accepted as true for purposes of reviewing the trial court’s dismissal of the case. See Sabia v. State,
At some point, the parties decided to have a child. When their attempts to conceive via a sperm donor failed, they decided to adopt a child. In July 1991, defendant adopted a newborn baby girl, who was named Sarah Ruth Dexter-Titchenal. The parties held themselves out to Sarah and all others as her parents. The child called one parent “Mama Chris” and the other parent “Mama Di.” For the first three and one-half years of Sarah’s life, until the parties’ separation, plaintiff cared for the child approximately 65% of the time. Plaintiff did not seek to adopt Sarah because the parties believed that the then-current adoption statute would not allow both of them to do so.
Eventually, the parties’ relationship faltered, and by November 1994 defendant had moved out of the couple’s home, taking Sarah with her. For the first five months following the partiеs’ separation, Sarah stayed with plaintiff between Wednesday afternoons and Friday evenings. By the spring of 1995, however, defendant had severely curtailed plaintiff’s contact with Sarah and had refused plaintiff’s offer of financial assistance.
Plaintiff urges us to grant “nontraditional” family members access to the courts by recognizing the legal rights of de facto parents.
We find no legal basis for plaintiff’s proposal. Courts cannot exert equitable powers unless they first have jurisdiction over the subject matter and parties. In re Marriage of Ryall,
The issue, then, is whether there is any underlying legal basis for plaintiff’s cause of action that would allow the superior court to apply its equitable powers to adjudicate her claim. Courts may exert equitable powers based upon common-law, statutory, or constitutional rights, or upon judicial acknowledgement of public-policy considerations establishing an as-yet-unrecognized legal right. See Payne v. Rozendaal,
Here, we find no legal basis from any of the above sources for plaintiff’s claimed right to parent-child contact in her capacity as an
With one possible minor exception,
In 1984, the Legislature enacted both a parentage act that gave putative fathers the right to bring an action to establish paternity (and thus seek custody or visitation), 15 V.S.A. §§ 301-306, and an act allowing grandparents to request visitation under limited circumstances, 15 V.S.A. §§ 1011-1016. Until then, visitation rights in Vermont had been restricted to married biological parents. See Lawrence v. Limoge,
In 1990, the Legislature created the family court and gave it “all of the equitable and other powers of the superior court as to civil matters within its jurisdiction.” 4 V.S.A. § 453(a) (emphasis added). The new court was granted exclusive jurisdiction to hear and dispose of custody disputes brought within various statutory proceedings. Id. §§ 454-455. Realizing that the family court lacks jurisdiction to adjudicate her claim, see In re R.L.,
Plaintiff acknowledges that no specific statutory or constitutional provisions require the superior court to assume jurisdiction over her claim, but she argues that public policy compels such a result, given her status as Sarah’s de facto parent. We do not agree. The superior court’s refusal to extend its jurisdiction here does not create circumstances “cruel or shocking to the average [person’s] conception of justice.” Payne,
In 1996, the Legislature enacted a new adoption statute embracing our holding in B.L.V.B. and allowing unmarried adoptive partners to petition the family court regarding parental rights and responsibilities or parent-child contact. See 15A V.S.A. § l-102(b) (if family unit consists of parent and parent’s partner, and adoption is in child’s best interest, partner of parent may adopt child without terminating parent’s rights); 15A V.S.A. § 1-112 (family court shall have jurisdiction to hear and dispose of issues pertaining to parental rights and responsibilities and parent-child contact in accordance with statutory divorce proceedings when two unmarried persons who
Nor do other public-policy considerations compel the conclusion that courts should intervene to consider whether third parties claiming a parent-like relationship ought to be given parent-child contact with the children of fit parents. Indeed, many courts and cоmmentators have noted the potential dangers of forcing parents to defend third-party visitation claims. See, e.g., In re Ash,
Plaintiff insists that tests could be created to assure that only those third parties who have developed an intended and shared de factoparent relationship with a child could petition for visitation. Seе In re Custody of H.S.H-K,
Plaintiff scoffs at the notion that various relatives, foster parents, and even day-care providers could seek visitation through court intervention, but the cases we have reviewed suggest that the possibilities are virtually limitless. See In re Hood,
In an effort to allay these concerns while still providing relief to this particular plaintiff, the dissent suggests that we employ the doctrine of equitable adoption. The dissent would have the family court determine on remand whether plaintiff would have adopted Sarah except for the perceived legal impediment; if so, plaintiff would be deemed the equitable adoptive mother, and the court presumably could accord her all the rights of a legal adoptive parent. Even if we ignore its inherent jurisdictional problems, the dissent’s position does not withstand scrutiny.
Though the dissent disavows extending the doctrine of equitable adoption into the realm of equitable parentage, that is precisely what it is doing. As we stated in Whitchurch v. Perry,
Courts generally apply the doctrine of equitable adoption in cases of intestate succession to permit participation in the estate by a fоster child who was never legally, i.e., statutorily, adopted by the decedent. Typically the decedent obtained custody by expressly or implicitly promising the child, the child’s natural parents, or someone in loco parentis that an adoption would occur. Custody is transferred and the child lives with the foster parent as would a natural child, but, for one reason or another (usually the promisor’s*384 neglect), an adoption never occurs. Upon the foster parent’s death, a court, applying the maxim that “equity regards that as done which ought to be done,” declares that the child is entitled to share in the estate as if he were a legally adopted child.
(Emphasis added.) For the doctrine to apply, there must either be an agreement to adopt or an undertaking to effect a statutory adoption, id. at 471,
Ironically, after stretching the doctrine of equitable adoption beyond recognition in an effort to provide relief to this particular plaintiff, the dissent would then let it snap back into place to prevent any future plaintiffs from taking advantage of its expanded form. But there is nо principled way to adopt the equitable-parent doctrine for this one case. Indeed, the dissent’s avowed purpose for affording plaintiff relief — to achieve an equitable and just result — contradicts its desire to limit the application of that doctrine. If achieving an equitable result is the goal, then a wide variety of reasons for failing to adopt — lack of funds or fear of discrimination by the adopting agency, for example — could form the basis for the family court’s jurisdiction to resolve factual disputes concerning whether a nonparent equitably adopted a legal parent’s child. We decline to join the dissent’s expansion of a judicial doctrine for the sole purpose of creating jurisdiction in the family court to benefit this particular plaintiff, only to foreclose all others having legitimate reasons for failing to adopt from seeking such equitаble relief. Very few jurisdictions have embraced the equitable-parent doctrine adopted in
We recognize that, in this age of the disintegrating nuclear family, there are public-policy considerations that favor allowing third parties claiming a parent-like relationship to seek court-compelled parent-child contact. In our view, however, these considerations are not so clear and compelling that they require us to acknowledge that de facto parents have a legally cognizable right to parent-child contact, thereby allowing the superior court to employ its equitable powers to adjudicate their claims. Given the complex social and practical ramifications of expanding the classes of persons entitled to assert parental rights by seeking custody or visitation, the Legislature is better equipped to deal with the problem. See Nancy S.,
Obviously, our opinion should not be read as impeding same-sex partners from child-rearing or as minimizing the importance of maintaining relationships between children and third parties with whom the children have formed significant bonds. But absent statutory authority extending the family court’s jurisdiction to adjudicate third-party visitation requests, cf. Or. Rev. Stat. § 109.119(1) (1989) (any persоn who has established emotional ties creating a child-parent relationship may petition for custody or visitation rights), legal parents retain the right to determine whether third-party visitation is in their children’s best interest. Finck,
Affirmed.
Notes
Some courts and commentators have distinguished between “de facto” parents and persons standing “in loco parentis” to a child. E.g., N. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 Geo. L.J. 459, 510 (1990) (major distinction between de facto parent doctrine and doctrine of in loco parentis is that latter customarily entails both financial and emotional support, while former focuses solely on psychological bond between adult and child); see In re Fowler,
Regardless of whether we view parent-child contact (visitation) as a limited form of parental rights and responsibilities (custody) or as a limitation upon another’s parental rights and responsibilities, such rights may be granted only in a jurisdictionally sound custody proceeding. Finck v. O’Toole,
The only case cited by plaintiff or amicus curiae that even indirectly involves a custody determination outside the context of an expressed statutory provision is an 1877 case in which this Court upheld a judgment that the defendant father, who had taken his illegitimate son to an orphanage after settling his liability with the town that had been supporting the boy, was not guilty of trespass and false imprisonment because he had a right to custody and control of the child by virtue of the authority derived from the town. Adams v. Adams,
The dissent would remand the instant matter to the family court even though plaintiff’s suit was not filed in that court, her appeal is from a superior court decision, the parties have not claimed that the family court has jurisdiction to adjudicate their dispute, and, in fact, the family court does not have jurisdiction to do so. In the dissent’s view, the family court has the authority to adjudicate this matter under 15A VS.A. § 1-112(1), which gives the family court jurisdiction to hear and dispose of issues pertaining to parent-child contact if “two unmarried persons, who have adopted a minor child, terminate their domestic relationship.” The problem with this analysis, of course, is that plaintiff never adoрted Sarah. The dissent would have the family court determine whether plaintiff equitably adopted the child. Apparently, the dissent would tap the court’s general equitable powers to provide jurisdiction to resolve this predicate question. As noted above, however, those powers may be exercised only within the limited statutory proceedings set forth in 4 VS.A. §§ 454-455, which demarcate the family court’s jurisdiction. See 4 V.S.A. § 453(a); In re R.L.,
According to the dissent, we should not presume that the parties were aware of judicial decisions that would have permitted both of them to adopt Sarah. We do not presume the parties’ knowledge of any judicial or statutory law; rather, we suggest that plaintiff should have at least attempted to adopt Sarah before seeking equitable relief based on her alleged perceived lack of a legal remedy. Equity will not aid those who fail to take advantage оf a remedy available at law. See Farm Bureau Mut. Auto. Ins. Co. v. Houle,
Dissenting Opinion
dissenting. I respectfully dissent. The Court rejects plaintiff’s effort to establish visitаtion with the minor child on the ground that there is no legal right by which the court might fashion
As explained more fully below, the doctrine of “equitable adoption” provides an alternative, well-established remedy that is well suited to the factual circumstances of this case. Based on the law as it was reasonably understood at the time, plaintiff was compelled to forego the opportunity, together with her partner, to adopt the minor child as any other married couple could have done. That law subsequently changed, and so, unfortunately, did plaintiff’s domestic circumstances. It is too late apparently for the parties to cooperate, but not for the law to provide a just remedy, by permitting plaintiff to establish an intent to adopt and thus preserve the critically important parent-child relationship.
The Court dismisses this approach out of hand. Apart from a rather unrestrained accusation of unprincipled special pleading on behalf of plaintiff, the actual reasons offered by the Court unravel upon detached analysis. This is not a particularly difficult case. Although the context is novel, the legal principle is settled and the facts are compelling.
As we observed in Whitchurch v. Perry,
Courts generally apply the doctrine of equitable adoption in cases of intestate succession to permit participation in the estate by a foster child who was never legally, i.e., statutorily, adopted by the decedent. . . Custody is transferred and the child lives with the foster parent as would a natural child, but, for one reason or another ... an adoption never occurs. Upon the foster parent’s death, a court, applying the maxim that “equity regards that as done which ought to be done,” declares that the child is entitled to share in the estate as if he were a legally adopted child.
Although courts have traditionally characterized the concept as an equitable remedy for an unperformed “contract” to adopt, in reality
While equitable adoption most commonly involves a child’s effort to share in the intestate estate of a foster pаrent who had intended to adopt, it has been applied in a variety of other contexts. It has been invoked, for example, to entitle a child to maintain an action for the wrongful death of a foster parent where the evidence disclosed an unconsummated intent to adopt. See Holt v. Burlington Northern R.R.,
We need not go as far as the Michigan court, which adopted the broader doctrine of equitable parentage, id. at 519, to recognize that the principle of equitable adoption has valid applications outside the context of inheritance law. Here I propose an application much closer to the original equitable-adoption concept. The purpose of the doctrine, as noted, is to allow a court to find, in retrospect, an intent to adopt by a person who had never formally done so, for the purpose of achieving a just result. Flaintiff in this matter contends that she would have adopted the minor child when she was born in 1991, but
Given these subsequent rule changes, plaintiff, in my view, should be accorded the opportunity to demonstrate on remand that, except for the perceived legal impediment in light of her personal circumstances at that time, she would have adopted the minor child as did defendant. Plaintiff should be allowed to prove, in other words, an intent to establish an adoptive relationship with the child that was never formally consummated because of the then current state of the law. All that this amounts to, in effect, is application of the principle of equitable adoption in a novel factual context — a retrospective inquiry by the court into whether plaintiff intended, but because of the then-current adoption statute failed, to effectuate an adoption of the minor child, to the end of achieving a fair result.
In such a proceeding, plaintiff would be allowed to adduce evidence identical to that generally considered to be material in the equitable-adoption context — reciprocal love and affection between parent and child, holding-out as the parent, “parental” designation on official forms, and the like. Indeed, without purporting to prejudge the issue, I would note in this regard that plaintiff alleges she was the minor child’s primary caretaker: she dressed and fed the minor every morning bеfore driving her to daycare, spent extensive time with the minor playing, talking and reading, and exercised primary responsibility for the minor during the evening. Plaintiff also allegedly shares a surname with the minor (“Dexter-Titchenal”) and is listed as the minor’s parent on her daycare enrollment form, probate records, and baptismal papers. Defendant’s last will and testament further states that plaintiff has “shared in the parenting of [the minor] since the day [she] came into [their] lives.” Should plaintiff establish these allegations at trial and persuade the court of her intent to adopt, she would
In adopting this approach, the court would not be “creating” any new legal rights; adoptive parents have all of the rights and responsibilities of a natural parent, including the right, upon termination of the parents’ relationship, to seek visitation. 15A Y.S.A. §§ 1-104, 1-112. We merely apply a settled equitable remedy — equitable adoption — to recognize retrospectively the adoptive relationship between plaintiff and the minor in order to achieve an equitable result.
As for the proper court in which to adjudicate plaintiff’s claim, the Legislature has recently made it clear that family court is the appropriate venue. As expressly provided in 15A V.S.A. § 1-112:
The family court shall have jurisdiction to hear and dispose of issues pertaining to parental rights and responsibilities, parent-child contact and child support. . . under the following circumstances:
(1) If two unmarried persons, who have adopted a minor child, terminate their domestic relationship;
(Emphasis added.) Furthermore, the family court has “all of the equitable . . . powers of the superior court as to civil matters within its jurisdiction.” 4 V.S.A. § 453(a). Thus, if the family court finds that plaintiff intended to adopt the minor child, it would adjudicate the matter as any other dissolution between “two unmarried persons, who have adopted a minor child,” 15A V.S.A. § 1-112(1), resolving visitation rights and related issues in the best interests of the child.
A decision along these lines would present none of the drawbacks of a broader holding recognizing the rights of “equitable parents.” It would apply only to this case, and any other in which a party allegedly failed to adopt because it was not a reasonable legal option. It is safe to assume that the courts will not be flooded with similar claims. Indeed, the number of potential claimants is finite by definition, since the holding would apply only to those who, like plaintiff, allegedly failed to adopt prior to the 1996 statutory changes in the adoption law. This approach also shields the family courts from the most common and problematic situation in which a cohabitant lives with the natural parent and child for some period of time, separates, and then seeks parental rights. Since the parties could have married and the
The Court, nevertheless, rejects this approach on three grounds. First, it claims the family court lacks jurisdiction to adjudicate such a matter. As explained above, however, the family court is expressly empowered to “hear and dispose of issues pertaining to parental rights and responsibilities [of]. . . two unmarried persons, who have adopted a minor child,” 15A V.S.A. § 1-112, and is further vested with full “equitable . . . powers” to determine whether one of the pаrties is entitled to adoptive-parent status. 4 V.S.A. § 453(a).
Second, the Court rather colorfully chides the dissent for “stretching the doctrine . . . beyond recognition in an effort to provide relief to this particular plaintiff” while providing no “principled” justification or limitation.
Finally, the Court advances the remarkable proposition that plaintiff somehow could, and should, have attempted to adopt the minor child prior to the couple’s separation in 1994. The Court observes that one probate court in 1991 had allowed an adoption in similar circumstances, and that in 1993 we issued our decision in B.L.V.B. broadening the right of nonmarried cohabitants to adopt. It is one thing to presume that parties are aware of, and bound by, general enactments of the Legislature that amend the law; it is quite another, however, to impute to a nonattorney specific knowledge of one probate decisiоn and a later, confirming appellate court decision. The
It is especially unfair in this case to assert, as the Court does, that plaintiff somehow “slumbered” and was less than vigilant. Plaintiff and defendant wanted a child to raise together as their own. They were not seeking to become a “test case” for the rights of gay and lesbian parents, nor should they have been expected to do so. They obeyed the law as it was then reasonably understood, and they had no cause to challenge it. They could not anticipate that the law would change, any more than they could anticipate that their relationship would change. But change they did, and by then it was too late to obtain the cooperation from defendant that would have avoided this dispute. It is wrong to suggest that plaintiff somehow brought this problem upon herself.
For all of the foregoing reasons, I would remand the matter to the family court for further proceedings consistent with the views expressed herein. Justice Johnson joins in the dissent.