Titchenal v. Dexter
Annotate this Case
Titchenal v. Dexter (96-188); 166 Vt. 373; 693 A.2d 682
[Filed 28-Feb-1997]
[Motion for Reargument Denied 23-Apr-1997]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 96-188
Chris Titchenal Supreme Court
On Appeal from
v. Washington Superior Court
Diane Dexter November Term, 1996
John P. Meaker, J.
Julie A. Frame and Jennifer E. Nelson of Hoff Curtis Pacht Cassidy &
Frame, P.C., Burlington, for plaintiff-appellant
John R. Durrance, Jr. of Gaston, Durrance & Fairbanks, Montpelier, for
defendant-appellee
Mary L. Bonauto, Boston, Massachusetts, for amicus curiae Gay &
Lesbian Advocates & Defenders
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
ALLEN, C.J. The 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, ___ Vt. ___, ___, 669 A.2d 1187, 1190
(1995). In 1985, plaintiff Chris Titchenal and defendant Diane Dexter
began an intimate relationship. They purchased a
home together, held joint bank accounts, and jointly owned their
automobiles. They both contributed financially to their household, and
each regarded the other as a life partner.
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 parties' 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.
In October 1995, plaintiff filed a complaint requesting that the
superior court exercise its equitable jurisdiction to establish and enforce
regular, unsupervised parent-child contact between her and Sarah. The
court granted defendant's motion to dismiss, refusing to recognize a cause
of action for parent-child contact absent a common-law or statutory basis
for the claim. On appeal, plaintiff argues that the superior court has
equitable jurisdiction under the state's parens patriae authority to
consider her complaint, and that both public policy and the doctrines of in
loco parentis and de facto parenthood allow the court to exercise its
equitable authority in cases such as this. An organization called the Gay
& Lesbian Advocates & Defenders (GLAD) makes essentially the same arguments
in its amicus curiae brief.
Plaintiff urges us to grant "nontraditional" family members access to
the courts by
recognizing the legal rights of de facto parents.(FN1) According to
plaintiff, the state's parens patriae power to protect the best interests
of children permits the superior court to adjudicate disputes over
parent-child contact (FN2) outside the context of a statutory proceeding.
Thus, under the scheme advocated by plaintiff and amicus curiae, the family
court would adjudicate disputes concerning parental rights and
responsibilities and parent-child contact within the parameters and
criteria set forth in statutory divorce, parentage, dependency and neglect,
nonsupport and separation, relief-from-abuse, and at times guardianship
and adoption proceedings, see 4 V.S.A. §§ 454-455 (establishing
jurisdiction of family court), while the superior court would exert its
equitable powers to consider such disputes arising outside these statutory
proceedings.
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, 201 Cal. Rptr. 504, 512 (Ct.
App. 1984); see Perry v. Superior Court of Kern County, 166 Cal. Rptr. 583,
584 (Ct. App. 1980) (visitation rights may be awarded to nonparents only in
proceeding in which court otherwise has jurisdiction over issue of
custody). Equity generally has no jurisdiction over imperfect rights
arising from moral rather than legal obligations; not every
perceived injustice is actionable in equity -- only those violating a
recognized legal right. In re E.C., 387 N.W.2d 72, 77 (Wis. 1986). A
court of equity does not create rights, but rather determines whether legal
rights exist and, if so, whether it is proper and just to enforce those
rights. City of St. Louis v. Golden Gate Corp., 421 S.W.2d 4, 7 (Mo.
1967); see Juaire v. Juaire, 128 Vt. 149, 152, 259 A.2d 786, 788 (1969)
(equity affords relief whenever legal right exists without adequate remedy;
by bringing action in equity, plaintiff did not seek to acquire new right,
but rather sought new remedy for preexisting right). In short, a court may
exert its equitable powers to grant appropriate relief only when a
judicially cognizable right exists, and no adequate legal remedy is
available. See Chapman v. Sheridan-Wyoming Co., 338 U.S. 621, 630-31
(1950) (courts applying their equitable powers "can intervene only where
legal rights are invaded or the law violated").
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, 147 Vt. 488,
492-94, 520 A.2d 586, 588-89 (1986) (notwithstanding absence of statutory
directive regarding age discrimination at time of alleged wrong, claim of
age discrimination was sufficient basis for wrongful discharge action
because termination of employee solely on basis of age is so contrary to
society's concern for providing equity and justice that there is clear and
compelling public policy against it).
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
equitable or de facto parent. Notwithstanding plaintiff's claims to the
contrary, there is no common-law history of Vermont courts interfering with
the rights and responsibilities of fit parents absent statutory authority
to do so. Although there is some support for the proposition that state
courts have equity jurisdiction under their parens patriae power to
adjudicate custody matters, such authority is generally invoked in the
context of dependency or neglect petitions. See New York Life Ins. Co. v.
Bangs, 103 U.S. 435, 438 (1880) (equity jurisdiction for protection of
children began in English courts of chancery and originated from general
duty of crown as parens patriae to protect persons who have no other
rightful protector). Invoking equity jurisdiction under these
circumstances was a narrow exception to the general common-law rule that
parents had the right to the custody, control, and services of their minor
children free from governmental interference. Bioni v. Haselton, 99 Vt.
453, 457, 134 A. 606, 607 (1926); see In re S.B.L., 150 Vt. 294, 303, 553 A.2d 1078, 1084 (1988) (parents and children have liberty interest in
relating to each other free from governmental interference); Olds v. Olds,
356 N.W.2d 571, 574 (Iowa 1984) (common-law rule prohibiting third-party
visitation over parental objection represents recognition that parents'
fundamental right to control over their children is protected against
unwarranted state intrusion); In re Hruby, 748 P.2d 57, 60 (Or. 1987)
(father's ancient common-law right to his children was qualified by
eighteenth and early nineteenth century decisions in which equity courts
exercised their parens patriae power to look after minors unable to care
for themselves); 2 H. Clark, The Law of Domestic Relations in the United
States § 20.7, at 539 (2d ed. 1987) (common law did not authorize courts to
grant visitation to persons other than parents); cf. Town of Brighton v.
Town of Charleston, 114 Vt. 316, 321, 44 A.2d 628, 632 (1945) (state is
authorized as parens patriae to legislate for protection, care, custody,
and maintenance of children within its jurisdiction).
With one possible minor exception,(FN3) the custody-related cases cited
by plaintiff and amicus curiae involve decisions made within the context of
statutory proceedings. See In re
B.L.V.B., 160 Vt. 368, 371-73, 628 A.2d 1271, 1273-74 (1993) (construing
provisions of adoption statute); Bissonette v. Gambrel, 152 Vt. 67, 69, 564 A.2d 600, 601 (1989) (action brought under statutory parentage proceeding);
S.B.L., 150 Vt. at 306, 311, 553 A.2d at 1086, 1089 (construing
guardianship and grandparent visitation statutes); Paquette v. Paquette,
146 Vt. 83, 85, 499 A.2d 23, 25 (1985) (construing divorce and separation
statutes); Bioni, 99 Vt. at 456, 134 A. at 607 (petition brought under
statutory guardianship proceeding). From early on, Vermont courts
intervened in custody matters concerning fit parents only under the
authority of divorce statutes originating from the eighteenth century, and
later nonsupport and separation statutes. See Ward v. Ward, 70 Vt. 430,
431, 41 A. 435, 435 (1898) (petition for custody under separation statute);
Buckminster v. Buckminster, 38 Vt. 248, 249-50 (1865) (construing divorce
statutes).
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, 149 Vt.
569, 572-73, 546 A.2d 802, 803-04 (1988) (superior court lacked subject
matter jurisdiction to award putative father visitation under separation
statute because he was unmarried; neither this Court nor trial court may
infer jurisdiction to determine visitation privileges of putative father in
action brought under statute other than Parentage Proceedings Act). Since
then, this Court has continued to refuse to allow courts to adjudicate
disputes over parent-child contact outside the context of statutory
proceedings. See Rivers v. Gadwah, ___ Vt. ___, ___, 679 A.2d 891, 891
(1996) (dismissing grandparents' visitation petition because it failed to
fit within statutory jurisdictional constraints).
In 1989, 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., 163 Vt. 168, 171, 657 A.2d 180, 183 (1995)
(family court is court of limited jurisdiction, and its jurisdictional
grant must be strictly construed),(FN4) plaintiff seeks equitable relief in
the superior court, notwithstanding that (1) Vermont courts have intervened
in custody and visitation matters only within the context of statutory
proceedings, and (2) expansion of the courts' role in these matters has
come only through legislative enactments or this Court's construction of
statutes affecting parental rights and responsibilities. See, e.g.,
B.L.V.B., 160 Vt. at 369-72, 628 A.2d at 1272-74 (construing adoption
statute to hold that when family unit is comprised of biological mother and
her partner, and adoption is in children's best interest, terminating
biological mother's parental rights is unnecessary and unreasonable);
Paquette, 146 Vt. at 86, 92, 499 A.2d at 26, 30 (construing divorce and
separation statutes to empower court to award custody of child to
stepparent when circumstances warrant).
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, 147 Vt. at 493, 520 A.2d
at 588. Persons affected by this decision can protect their interests.
Through marriage or adoption, heterosexual couples may assure that
nonbiological partners will be able to petition the court regarding
parental rights and responsibilities or parent-child contact in the event a
relationship ends. Nonbiological partners in same-sex relationships can
gain similar assurances through adoption.
In this case, plaintiff contends that she did not attempt to adopt
Sarah at the time defendant did because the parties believed that Vermont's
then-current adoption laws would not permit it. See 15 V.S.A. § 431
(repealed 1995) ("A person or husband and wife together . . . may adopt any
other person . . . ."). The language of the statute, however, certainly
did not preclude plaintiff from seeking to adopt Sarah; indeed, as of
December 1991, when Sarah was only five months old, at least one Vermont
probate court had allowed the female partner of a child's adoptive mother
to adopt the child as a second parent. See B.L.V.B., 160 Vt. at 373 n.3,
628 A.2d at 1274 n.3. Further, in June 1993, more than a year before
plaintiff alleges that the parties' relationship ended, this Court
construed the earlier adoption statute as allowing a biological mother's
female partner to adopt the mother's child without the mother having to
terminate her parental rights. Id. at 369, 628 A.2d at 1272.(FN5)
In 1995, 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. § 1-102(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 have adopted minor child terminate their domestic
relationship); see also 15 V.S.A. § 293(a) (amended version allows parents
and stepparents, whether married or unmarried, to petition family court
regarding parental rights and responsibilities and parent-child contact).
Thus, same-sex couples may participate in child-rearing and have recourse
to the courts in the event a custody or visitation dispute results from the
breakup of a relationship.
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 commentators have noted
the potential dangers of forcing parents to defend third-party visitation
claims. See, e.g., In re Ash, 507 N.W.2d 400, 403 (Iowa 1993) (extending
visitation rights to third parties would allow claims for visitation from
various persons with special relationships to children, possibly requiring
courts to divide children's time among several parties); 2 Clark, supra, §
20.7, at 542-43 (movement for wider visitation is in large part based on
desire to vindicate rights of those seeking parent-child contact rather
than to further children's interests; visitation petitions impose serious
psychological stresses on children and heavy financial burdens on
custodians who often do not have adequate financial resources to defend
against suits).
Plaintiff insists that tests could be created to assure that only
those third parties who have
developed an intended and shared de facto-parent relationship with a child
could petition for visitation. See In re Custody of H.S.H.-K., 533 N.W.2d 419, 435-36 (Wis.), cert. denied, Knott v. Holtzman, 116 S. Ct. 475 (1995)
(devising test for those seeking visitation to demonstrate parent-like
relationship). We are not persuaded by this argument. Although we might
recognize new legal rights that would permit the superior court to extend
its equitable jurisdiction, jurisdiction should not rest upon a test that
in effect would examine the merits of visitation or custody petitions on a
case-by-case basis. In reality, such a fact-based test would not be a
threshold jurisdictional test, but rather would require a full-blown
evidentiary hearing in most cases. Thus, any such test would not prevent
parents from having to defend themselves against the merits of petitions
brought by a potentially wide range of third parties claiming a parent-like
relationship with their child. See Nancy S. v. Michele G., 279 Cal. Rptr. 212, 219 (Ct. App. 1991) (no matter how narrowly court defined "parent,"
allowing persons claiming parent-like relationship to seek visitation
rights could expose legal parents to litigation from long-standing day-care
providers, relatives, successive sets of stepparents, or close family
friends).
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, 847 P.2d 1300, 1301 (Kan. 1993)
(day-care provider claiming right to visitation based on best interest of
child and existence of substantial relationship between herself and child);
L. v. G., 497 A.2d 215, 219, 222 (N.J. Super. Ct. Ch. Div. 1985) (applying
its inherent equitable powers, court concluded that adult siblings have
right to visit minor siblings, subject to best interests of minors);
Bessette v. Saratoga County Comm'r, 619 N.Y.S.2d 359, 359 (N.Y. App. Div.
1994) (petition for visitation by former foster parents). Further, as some
courts have noted, third parties could abuse the process by seeking
visitation to continue an unwanted relationship or otherwise harass the
legal parents. See Hood, 847 P.2d at 1304 (danger of parents being
harassed by third-party visitation petitions is policy consideration that
weighs against expanding classes of persons who may seek visitation).
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, 137 Vt. 464, 470-71, 408 A.2d 627, 631 (1979),
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. 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
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, 408 A.2d at 631, neither of which took place here. In Whitchurch, we
declined to expand the doctrine to confer on the plaintiffs a "next of kin"
status to provide standing for them to bring a wrongful death action,
stating that the doctrine of equitable adoption "permits enforcement of the
promise of inheritance implied from the agreement to adopt, but it does not
alter the status of the parties." Id. at 472, 408 A.2d at 632. Rather, we
noted, it "merely confers a right of inheritance." Id. It is obvious from
the discussion in Whitchurch that in this case the dissent would not be
employing the doctrine of equitable adoption, but rather a much more
expansive variant thereof aimed at allowing "equitable parents" to
interfere with the custodial rights of legal parents. See Pierce v.
Pierce,
645 P.2d 1353, 1355 (Mont. 1982) (doctrine of equitable adoption had no
application to proceeding where stepfather was seeking to establish
custodial rights over his former stepchild against wishes of biological
mother).
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 no
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 equitable relief. Very few
jurisdictions have embraced the equitable-parent doctrine adopted in
Atkinson v. Atkinson, 408 N.W.2d 516, 519 (Mich. Ct. App. 1987). See In re
Marriage of Goetz & Lewis, 250 Cal. Rptr. 30, 33 (Ct. App. 1988) (given
complex practical, social, and constitutional ramifications of
equitable-parent doctrine, legislature is better equipped to consider
expansion of categories of persons who may petition for visitation and
custody); In re Marriage of O'Brien, 772 P.2d 278, 283 (Kan. Ct. App. 1989)
(declining to adopt equitable-parent doctrine because it would open
courthouse doors to all individuals claiming rights based on equitable
adoption). Among the few courts that have adopted the doctrine, however, we
have not found any that have limited it in the manner proposed by the
dissent. Cf. Whitchurch, 137 Vt. at 471, 408 A.2d at 631
(equitable-adoption doctrine is typically invoked when foster parents had
agreed to adopt child, but failed to do so for one reason or another).
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., 279 Cal. Rptr. at 219; O'Dell v. O'Dell, 629 So. 2d 891, 891
(Fla. Dist. Ct. App. 1993) (raging debate that exists concerning wisdom of
granting child visitation to substitute parents is matter best left for
legislature), appeal dismissed, 637 So. 2d 236 (Fla. 1994); Hood, 847 P.2d
at 1303-04 (legislature must decide if and when intrusion into family unit
in form of third-party visitation is justified by legitimate state
interest; legislature is forum to entertain sociological and policy
considerations bearing on well-being of children). Deference to the
Legislature is particularly appropriate in this arena because the laws
pertaining to parental rights and responsibilities and parent-child contact
have been developed over time solely through legislative enactment or
judicial construction of legislative enactments. See Finck v. O'Toole, 880 P.2d 624, 627 (Ariz. 1994) (legislative scheme naming specific classes of
parties to whom visitation may be granted, and imposing substantial
limitations on statutorily granted visitation rights, suggests that
legislature did not intend to award visitation to unspecified third
parties).
For the reasons stated, we concur with the superior court's conclusion
that it was without authority to consider plaintiff's petition for
visitation. See Curiale v. Reagan, 272 Cal. Rptr. 520, 522 (Ct. App. 1990)
(jurisdiction to adjudicate custody depends upon there being some
proceeding properly before court; same-sex partner who was not biological
parent of child had no standing to avail herself of statutory custody
proceedings); Ash, 507 N.W.2d at 404 (courts lack power to order visitation
absent statutory or common-law authority recognizing legal right);
Olds, 356 N.W.2d at 572 (trial court had no authority outside context of
statute to consider petition in equity for visitation); Alison D. v.
Virginia M., 572 N.E.2d 27, 28-29 (N.Y. 1991) (although same-sex partner
had close and loving relationship with child, she was not parent within
meaning of statute and thus had no standing to seek visitation); cf.
H.S.H.-K., 533 N.W.2d at 430-31 (because courts in Wisconsin adjudicated
visitation before it was regulated by statute, trial court had equitable
power to hear visitation petition outside context of statute,
notwithstanding that "custody" continues to be governed exclusively by
statutory proceedings). We decline to judicially create a right of
unrelated third-party visitation actionable in superior court pursuant to
the court's equitable powers and subject only to the court's discretion --
a right that would exist above and beyond the circumscribed rights granted
by the Legislature. Were we to do so, we would establish, in effect, a
two-tiered system in which persons who could not bring their visitation and
custody petitions in statutory proceedings before the family court would
turn to the superior court for relief. The Legislature did not contemplate
such a system, and the law does not compel it.
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 person 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, 880 P.2d at 627.
Affirmed.
FOR THE COURT:
________________________________________
Chief Justice
-----------------------------------------------------------------------------
Footnotes
FN1. 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, 130 Vt.
176, 179, 288 A.2d 463, 465 (1972) (term "in loco parentis" means in place
of parent as to rights, duties, and responsibilities). For purposes of
this opinion, we see no need to draw fine lines between the doctrines.
Plaintiff's point is that though she is not the legal parent of Sarah, in
all other respects she has acted as the child's parent.
FN2. 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, 880 P.2d 624, 626 (Ariz. 1994); see Loeb v. Loeb, 120 Vt. 489,
492, 144 A.2d 825, 827-28 (1958) (visitation directly concerns custody);
Cooper v. Merkel, 470 N.W.2d 253, 255 (S.D. 1991) (right of visitation
derives from right of custody and is controlled by same legal principles).
FN3. 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, 50 Vt. 158, 161 (1877).
This case hardly establishes equity jurisdiction over custody matters
outside statutory proceedings, and even if it did, it would do so only for
cases involving dependency or neglect.
FN4. 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 V.S.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 adopted 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 V.S.A. §§ 454-455, which demarcate the family court's
jurisdiction. See 4 V.S.A. § 453(a); In re R.L., 163 Vt. 168, 171, 657 A.2d 180, 183 (1995).
FN5. 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 of a remedy available at law. See Farm Bureau Mut.
Auto. Ins. Co. v. Houle, 118 Vt. 154, 158-59, 102 A.2d 326, 329 (1954)
(citing maxims that equity will not interfere when there is adequate remedy
at law, will not relieve party against mistake of law, and will not aid
those who sleep on their rights or who act in ignorance of facts that could
have been ascertained); see also Sandstrom v. Chemlawn Corp., 904 F.2d 83,
87 (1st Cir. 1990) (having eschewed other legal remedies, plaintiff's
invocation of equitable principles rings hollow; equity ministers to
vigilant, not to those who slumber upon their rights); Aldridge & Stroud,
Inc. v. American-Can. Oil & Drilling Corp., 357 S.W.2d 8, 11 (Ark. 1962)
(courts of equity do not sit to restore lost opportunities). If plaintiff
wanted to adopt Sarah, she should have attempted to do so. If she had
applied for an adoption, either the probate court or this Court would have
permitted it under our adoption laws. See In re B.L.V.B., 160 Vt. 368,
369, 373 n.3, 628 A.2d 1271, 1272, 1274 n.3 (1993). Instead, plaintiff made
no attempt to adopt, but now seeks equitable relief years later.
----------------------------------------------------------------------------
Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 96-188
Chris Titchenal Supreme Court
On Appeal from
v. Washington Superior Court
Diane Dexter November Term, 1996
John P. Meaker, J.
Julie A. Frame and Jennifer E. Nelson of Hoff Curtis Pacht Cassidy &
Frame, P.C., Burlington, for plaintiff-appellant
John R. Durrance, Jr. of Gaston, Durrance & Fairbanks, Montpelier, for
defendant-appellee
Mary L. Bonauto, Boston, Massachusetts, for amicus curiae Gay &
Lesbian Advocates & Defenders
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
MORSE, J., dissenting. I respectfully dissent. The Court rejects
plaintiff's effort to establish visitation with the minor child on the
ground that there is no legal right by which the court might fashion an
equitable remedy, and the Court is unwilling to create a new legal right of
"equitable parentage." Although other courts have embraced the concept,
see, e.g., In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis.), cert. denied,
Knott v. Holtzman, 116 S. Ct. 475 (1995) (court may grant visitation to
former lesbian partner if petitioner proves parent-like relationship with
minor child), I agree with the Court that the social implications of the
equitable-parent doctrine are sufficiently complex that any major policy
decision in this area properly rests with the Legislature. That is not,
however, the only avenue of relief available to plaintiff.
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, 137 Vt. 464, 470-71, 408 A.2d 627, 631 (1979) (emphasis added),
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 the
agreement "to adopt is found when a close relationship, similar to
parent-child, exists between a child and the deceased." Atkinson v.
Atkinson, 408 N.W.2d 516, 520 (Mich. Ct. App. 1987); see also First Nat'l
Bank v. Phillips, 344 S.E.2d 201, 203 (W. Va. 1985) (rejecting contract
notion as "unnecessary fiction" and relying instead on evidence of love and
affection between parent and child and outward representations of
parent-child relationship). An agreement to adopt may be inferred from the
"acts, conduct and admissions of the parties and other relevant facts and
circumstances," Cavanaugh v. Davis, 235 S.W.2d 972, 975 (Tex. 1951), which
might include such evidentiary facts as an assumption by the child of the
deceased's surname, identification of the deceased as the child's parent on
school
and other formal records, and, most significantly, evidence of a
relationship of love and affection between the deceased and the child. The
concept of equitable adoption has been recognized both in Vermont,
Whitchurch, 137 Vt. at 470-71, 408 A.2d at 631, and broadly across the
country. See Annotation, Modern Status of Law as to Equitable Adoption or
Adoption by Estoppel, 97 A.L.R.3d 347 (1980) (collecting cases).
While equitable adoption most commonly involves a child's effort to
share in the intestate estate of a foster parent 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 Ry., 685 S.W.2d 851, 857
(Mo. Ct. App. 1984); Bower v. Landa, 371 P.2d 657, 661 (Nev. 1962). It has
also been extended to allow a parent to obtain the death benefits of a
child under a workers' compensation statute where the evidence disclosed an
unfulfilled intent to adopt the deceased child. Jones v. Loving, 363 P.2d 512, 515 (Okla. 1961). And in a recent Michigan case, the doctrine was
invoked to support the parental rights of a nonbiological father to the
daughter born while he was married to the mother. Atkinson, 408 N.W.2d at
520.
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. Plaintiff in this matter contends that she would have adopted the
minor child when she was born in 1991, but that the adoption statute then
appeared to allow only one nonmarried person to adopt, and defendant was
designated as the adoptive parent. The rules of adoption were liberalized
in 1993, when the Court recognized the right of a nonmarried parental
partner to adopt, see In re B.L.V.B., 160 Vt. 368, 369-73, 628 A.2d 1271,
1272-74 (1993), and substantially revised in 1995, when the Legislature
enacted a new adoption statute formally recognizing the right of nonmarried
cohabitants to freely adopt. See 15A V.S.A. § 1-102(b) (if family 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); see
also 15A V.S.A. § 1-102(a) ("[A]ny person may adopt or be adopted by
another person for the purpose of creating the relationship of parent and
child between them.").
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 before
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 be accorded the legal status of
an adoptive parent, and the family court could then resolve the visitation
issue as though it were a regular dissolution proceeding, determining what
is in the best interests of the child.
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 V.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 1995 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 cohabitant could have adopted, our
holding would plainly not extend to them. In sum, a holding along the
lines outlined above holds the promise of fairness, yet avoids the real
risks, identified by the Court, of a broader-based holding recognizing the
rights of equitable parents.
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 parties 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. Ante, at 12. These are the same old stale and discredited
charges that "law" has brought against "equity" since the days of Henry II.
The principle in this case is indeed suited to this plaintiff, but that
makes it no more "unprincipled" than any other equitable doctrine, unless
the Court also considers equitable estoppel, equitable servitudes,
constructive trusts, specific performance, and every other equitable remedy
to be unprincipled. Furthermore, there is a plain and principled basis for
extending the equitable-adoption doctrine to this plaintiff (and anyone
similarly situated) and no further, that the Court simply ignores.
Plaintiff was effectively barred from adopting the minor by the law in
effect when she and defendant were together. This unique fact justifies an
extension of equitable relief to this plaintiff, and establishes a
principled basis to exclude others who might wish to take advantage of the
doctrine.
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 decision and a later, confirming appellate court decision. The
rule that everyone is presumed to know the law, and the corollary that
ignorance of the law is no excuse, is a rule of necessity designed to
ensure that mere ignorance does not immunize one who commits a crime from
its penal consequences. See Brent v. State, 43 Ala. 297, 302 (1869)
("[T]hat everybody is presumed to know the law . . . is a rule of
presumption, adopted from necessity, and to avoid an evil that would
otherwise constantly perplex the courts, in the administration of the
criminal law; that is, the plea of ignorance."). As one court has
observed, however, "[t]he necessity does not go further in civil matters so
as to punish, punitively, on the strength of the legal presumption, which
more often than otherwise is against the truth." Topolewski v. Plankinton
Packing Co., 143 Wis. 52, 73 (1910). It would be contrary to common sense
and fairness to conclude that plaintiff, or anyone similarly situated,
should have known that she had the legal right to adopt prior to the
effective date of 15A V.S.A. § 1-102.
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.
_______________________________________
Associate Justice
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