De Facto Parentage

Government Surveillance Drones

Peralta v. Brannan, 2020 VT 100

By Elizabeth Kruska

Vermont has a fairly new statute that is often referred to as the de facto parentage statute. Boiled way down, it’s a way for someone who is not a biological parent to attain a legally recognized status of a child as a parent. It’s a change recognizing that families aren’t necessarily as easily defined as birth parents and birth children. This doesn’t mean anyone off the street can go to court and say, “Hey court, make me a legal parent of the kid down the road.” Someone seeking to be a de facto parent has lots of factors to prove that even though they aren’t the birth parent, they have actively acted in the role of a parent to the child for a significant portion of the child’s life.

Think about what happens. Let’s suppose two adults meet and have a relationship. One of the adults enters the relationship with a child. The new partner forms a relationship with the child and they probably do things together. Then, after many years, the adults split, as they sometimes do. This can cause a lot of pain and sadness for the child, who is not just losing a relationship, but may be losing someone who acted in a parent role. The child may also be losing extended family and other relationships that are important to the child. Because the child isn’t legally recognized as the child of the other adult, the other adult has no recourse to continue the relationship.

The Plaintiff in this case, Ashton Peralta, is an example of who could be a de facto parent. (Spoiler alert: he is.) Mr. Peralta and the Defendant, Ms. Brannan, were in a long-term relationship, although they were never married. Ms. Brannan has a daughter, A.Z., who was born in 2010. It’s not clear exactly when Ms. Brannan and Mr. Peralta met, but they met online, and in late 2011, Mr. Peralta moved in with Ms. Brannan and A.Z. in their home in New Mexico. In 2012 the three moved to Connecticut to live with Mr. Peralta’s parents, where they stayed for several years. In 2016 the parties had a child, S.P., and not long after moved to Vermont along with Mr. Peralta’s parents. Ms. Brannan and the kids – A.Z. and S.P. – lived with Mr. Peralta’s parents, either in Connecticut or Vermont, from 2012 to September 2018.

Also in 2012 a court in New Mexico issued a parentage order for A.Z.’s birth father, although he has had no role in her life.

In 2016 Mr. Peralta began using substances, and by 2017 had moved out of his parents’ home. Ms. Brannan stayed in their home with the two children until September 2018. There were significant difficulties in the parties’ relationship related to Mr. Peralta’s substance use. At one point she got a relief from abuse (RFA) order against him.

The parties did a parentage case for S.P., the younger child. Mr. Peralta also filed to be made a de facto parent of A.Z. Ms. Brannan opposed Mr. Peralta’s motion, and moved to dismiss it. The family court denied the motion to dismiss, and after taking evidence, granted Mr. Peralta’s motion for de facto parentage. Ms. Brannan appeals, and SCOV affirms.

At the time of the hearing the court found A.Z. was bonded to Mr. Peralta and his extended family. She was happy and outgoing, and doing well in school. Mr. Peralta had filled the role of dad for most of her life. A.Z. recognized him as “daddy.” She had a relationship with him and with his parents, and with his parents’ adopted daughter who is a couple years older than A.Z. From late 2017 until this case was filed in 2019 Mr. Peralta had visits at his parents’ house with both A.Z. and S.P.

The court was also concerned that if it did not adjudicate Mr. Peralta as a de facto parent that A.Z. would likely not be able to continue the strong blended family relationship that had developed with Mr. Peralta’s extended family. It would be confusing that her sister, S.P., would be able to have that family if she could not. The court found that although Mr. Peralta’s substance use caused significant problems in the family relationship, if he was sober, he was a positive force in A.Z.’s life. The court found he had been sober for about eighteen months at the time of the hearing.

Ms. Brannan’s first argument on appeal has to do with her motion to dismiss. She argues that because there was already a parentage order out of New Mexico for A.Z.’s birth father, that Vermont is required to give full faith and credit to that order. SCOV says it does, and that the de facto parentage statute doesn’t change anything except to add an additional parent, which is exactly what the statute was meant to do. It doesn’t disturb the fact that New Mexico found Mr. Z. (I assume) to be A.Z.’s birth parent, and doesn’t alter his rights as a birth parent.

Ms. Brannan also argues that Mr. Peralta’s motion is untimely because he filed it years after they separated, but that wasn’t argued below so SCOV does not consider it. SCOV does mention that there doesn’t seem to be a requirement for the timing of such a filing anyway.

Ms. Brannan also argues that the court did not properly weigh the evidence against the statutory factors. Longtime readers know that a weight-of-the-evidence argument is a tough one to make on appeal, because SCOV will uphold a trial court’s findings unless they are clearly erroneous. Only if there’s no credible evidence in the record to support the court’s findings will SCOV reverse. This, of course, is because SCOV recognizes that the trial court is the one that hears the evidence and sees the witnesses, and is in the best position to evaluate the evidence. SCOV says it does not reweigh the evidence on appeal.

First, Ms. Brannan argues that Mr. Peralta only lived with the family for four of A.Z.’s nine years, and that this is not a significant amount of time. The trial court disagreed with this assertion, and SCOV affirms the trial court. The trial court actually found that they all lived together from the time A.Z. was one until she was seven, and that this was a significant portion of her life. SCOV concludes this finding is reasonable, given the evidence in the record.

Ms. Brannan also argues that the court erred when it found Mr. Peralta provided consistent caretaking of A.Z. during her life. She argues he didn’t do that, and that his providing financial assistance wasn’t the same as parenting. SCOV denies this argument, as well. The trial court expressly found that when Mr. Peralta struggled with substance use he didn’t engage in parenting, but before that he participated in child-rearing activities.

Another argument is that Mr. Brannan wasn’t the one actually supporting A.Z. – it was his parents. The trial court took evidence about Mr. Peralta’s parents. While they all lived together, Mr. Peralta contributed to the family. Support provided by Mr. Peralta’s parents was noted, but not attributed to Mr. Peralta. SCOV again says the trial court properly weighed the evidence and made appropriate findings.

Ms. Brannan argues that the trial court was wrong in its finding that Mr. Peralta held out A.Z. to be his own child. She disagrees with the court’s finding that A.Z. called him “Daddy” and that it would be confusing for A.Z. to make sense of how S.P. had Mr. Peralta as her dad but A.Z. didn’t. Again, SCOV notes that the trial court made findings based on the evidence presented and that it would not re-weigh the evidence.

Another argument seems to be that Mr. Peralta and A.Z. didn’t actually have a bond with one another. The trial court took lots of evidence that suggested otherwise, and made findings on that point. She also argues that the trial court “failed to consider” her own testimony that gave a different explanation about the family. SCOV says it isn’t that the trial court didn’t consider it, the trial court just didn’t find it to be persuasive.

The last argument is that the trial court erred when it found it was in A.Z.’s best interest for Mr. Peralta to be made a de facto parent. Ms. Brannan’s argument is that due to his prior substance abuse and his behavior during that time it couldn’t have been in A.Z.’s best interest.

The trial court looked broadly at the situation and felt that not only did Mr. Peralta fit the category of a de facto parent, but that A.Z.’s continued relationship with the extended family was in her best interest. Ms. Brannan's challenge rests in the weight of the evidence. SCOV says that the finding is fully within the discretion of the trial court and was supported by evidence presented below.

So, based on all that, SCOV affirms the finding of de facto parentage and the denial of the motion to dismiss.