Tuesday, July 22, 2014

Who’s Your (Well, Anybody’s) Daddy?

Moreau v. Sylvester, 2014 VT 31

By Elizabeth Kruska

At first blush, the facts of this case seem simple.

Christopher Moreau and Noel Sylvester dated over several years. Noel has 2 kids. Christopher wasn’t their dad, but for 8-10 years, was a pretty significant parent-figure in their lives. I think we can assume that he and the kids formed a relationship based on the time they spent together.

Unfortunately, as things sometimes do, the relationship fell apart. Noel moved on and started dating someone new. Christopher sent her text messages suggesting he would find her and the kids. He tracked down Noel’s new boyfriend at work, and then went to Noel’s house and knocked on her door in the middle of the night. The next night he did the same thing with a friend, and they both banged on Noel’s door until the police came.

Based on this behavior, Noel decided to get a relief from abuse (RFA) order, which was granted relative to both she and the kids. This happened in Caledonia County. Christopher appeals this.

Christopher also filed a petition in Washington County, seeking sole physical and legal custody of Noel’s kids. This got dismissed because he’s not related to the kids in any way. He appeals this, too. Christopher’s issue is that under the best interests of the children standard, Vermont courts should be able to create enforceable visitation schedules between kids and adults who have formed parent-like relationships. He feels this is possible, as Vermont courts have expanded custody and marriage laws in the past.

SCOV affirms both lower courts, but has a whole lot to say. First, SCOV walks through changes in the parental rights and responsibilities laws from the last 30 years, including changes to the Adoption Act that allowed for stepparents to adopt children without biological parents’ rights being terminated. SCOV also discusses the evolution of caselaw on third party visitation rights, and finally, nonbiological parentage.

This is all to get to the point to say that currently, under Vermont law, here’s who are parents: biological parents, stepparents, adoptive parents, and nonbiological parents in lawful same-sex unions (whether civil unions or marriage). Here’s who are not parents: anyone who doesn’t fit in one of those categories.

Although Christopher raised interesting issues, there’s no lawful way for him to get what he seeks: custody of and/or visitation with kids who aren’t his. Christopher suggests that since there is no law for this, that his remedy is one of equity. SCOV declines this. There really isn’t an equity basis here, either, since there’s no common law analogue, no public policy support, and no yet-unheard-of cause of action to compel a ruling outside of what’s allowed by law.

SCOV isn’t about to expand the definition of parentage. First of all, even though the world is changing and societal concepts of family are changing, it’s up to the legislature to create some law to expand the law, not the court. Secondly, SCOV seems wary of a slippery slope. Ruling to allow Christopher visits with Noel’s kids would allow for every jilted partner in a domestic break-up to file for visitation or even custody. That would potentially create mountains of litigation statewide. Short of some really exceptional circumstances (desertion, serious parental unfitness, etc.), the Family Court isn’t going to separate kids from their parents in favor of a third party. SCOV notes that biology is not the end-all when it comes to parent-child relationships, but there’s got to be some kind of legal connection to a child in order for a parent to have court-ordered custody or visits. Christopher didn’t have that kind of relationship.

Christopher also appealed the RFA, which denied him contact with the kids. He points out that he wasn’t related to the kids, and the trial court noted that. SCOV takes a deferential view of RFA proceedings, because the trial court has the ability to assess the credibility of witnesses and evidence. SCOV feels the evidence supported the findings, so the order is affirmed. SCOV does not note (and perhaps it is not borne out by the evidence) that even though Christopher was not the bio dad, if he lived with the kids at any point that they could be proper parties to an RFA.

Justice Dooley concurs. He points out that families are outgrowing our current statutes and urges the legislature to take some action. He also points out that SCOV has suggested the legislature take a look at similar issues in the past to no avail. Even though the goal is always to consider the best interests of the child, we may find ourselves in a bind in an attempt to meet that interest if the nature of families cannot be adequately addressed by our laws.

Justice Robinson dissents. She’s looking at the question differently: under what circumstances does Vermont’s parentage statute permit a determination of parentage when the putative parent is not married to nor the biological parent of a child? This case calls for an expansion of the definition of parent, because this particular fact pattern doesn’t fit with any of Vermont’s prior decisions. She points out that modern families are changing and that other jurisdictions are changing their parentage rules in order to keep up.

She seizes upon language from Miller-Jenkins, indicating that SCOV recently said it is up “to the courts to define who a parent is for purposes of a parentage adjudication.” Courts are supposed to look at various factors in determining parentage, including whether the parents are in a valid legal union, the expectations of the parents relative to the child, and genetics. Although these factors are relevant, each, including DNA, is not dispositive in defining who is or isn’t a parent.

Other states have expanded the notion of who fits the definition of “parent” and in limited and well-defined circumstances, allowed for parental rights and responsibilities and visitation to be awarded to non-biological and non-adoptive parents. The way the statute is currently written it leaves the parentage determination to the court. Justice Robinson urges consideration of various factors, including biology, a formal legal relationship, an established pattern of parenting, parties’ intentions and expectations relative to the child, and the presence or absence of a competing claimant for parental status. Other states look at factors like this in determining whether a person fills the role of the parent. This gets away from the notion that just because there is no biological or legal relationship that someone isn’t a parent.

Finally, expanding the factors for consideration does not, in any way, undermine the parental rights of fit, legal parents. Courts have taken the view that where a parent invites another adult into a child’s life and gives that adult parenting-like responsibilities, that it creates a new parent. If the child forms a relationship with that person, but the adult relationship later breaks up, the child also suffers a loss. The grownups might stop liking each other, but that doesn’t mean the kids have to miss out on important relationships.

Here, Christopher had a pretty lengthy and significant relationship with Noel’s kids. The dissent would rather see the case remanded to the family court for consideration of Christopher as a parent under the factors listed. The dissent avoids the issue of the RFA, which prohibits contact between Christopher and the children, anyway. On this particular set of facts, if the RFA is still in place, a remand would do little more than to establish factors (or not) for children that Christopher is barred by court order from seeing in the first place.

It will certainly be interesting to see what, if anything, the legislature does in response to this case.

No comments:

Post a Comment