Two women, known only in court papers as “Jane Doe” and “Jane Doe I,” were in a non-marital, romantic relationship for four years before agreeing to start a family using an anonymous donor. Jane Doe I conceived and gave birth to a child, whom she jointly raised with her female partner, Jane Doe, for about 2.5 years. To avoid confusion, the court quickly relabels Jane Doe I as “Mother” and Jane Doe as “Partner,” presaging its legal conclusion that only one of these women has rights to the child they jointly planned for and raised. According to the court, without the consent of “Mother,” “Partner” has no right to maintain a relationship with the child.
This case, Doe v. Doe, is a reminder that the rights of lesbian co-parents remain in limbo, particularly for couples who are not married. It also provides a window into the role the Constitution plays both in protecting parental rights and allocating them.
When “Mother” and “Partner” Have a Child, Are They Both Parents?
In this case, the two women were in a relationship for several years before deciding to start a family, relying on the services of an anonymous sperm donor. They didn’t marry because, according to the Idaho Supreme Court, Mother “did not want the legal commitment to Partner.” Also according to the court, “Mother planned to have a child regardless of whether Partner participated, and Mother wanted Child to be biologically related to her.” If Partner had any different take on their intent, the opinion does not let on.
In many ways, this case is typical of other disputes between lesbian co-parents. Both women were involved with the artificial insemination process. Together, they attended prenatal appointments and the birth itself. For the first 2.5 years of the child’s life, Mother and Partner cohabited and coordinated work schedules in order to provide care for the child.
Before the child’s birth, Mother and Partner jointly consulted an attorney about the possibility that Partner might adopt the child, but were discouraged from pursuing adoption because of the attorney’s view that same-sex-couple adoptions were prohibited in Idaho. The state’s highest court did give its approval to such adoptions, in In re Adoption of Doe, but not until 2014, a few years after the 2010 birth of the child at issue in this case.
The adult relationship began to crumble in 2012, and Partner moved out of the family home. Although Partner did not seek formal custody at that point, she continued to care for the child while Mother was at work. The time Partner spent with the child lessened over the next couple of years, and, in 2015, Mother unilaterally severed all contact between Partner and the child, informing Partner that she was just a partner and had no legal rights to the child.
Partner then filed a petition asking for adoption, guardianship, and/or visitation. Does she have a right to any or all of these things?
Let’s consider adoption first. In the decades before marriage equality, many same-sex couples relied on so-called second-parent adoption to protect the relationship between the non-biological parent and her partner’s child. This type of adoption was recognized by courts—first in Vermont, second in Massachusetts—as an equitable workaround for same-sex couples who could not marry and therefore could not make use of the statutory procedure for step-parent adoption. Adoption was and is the most secure form of parental status because adoption decrees are judgments that are entitled to the most exacting form of full faith and credit. In other words, one state does not have the ability to deny their effect, even if it would not have granted the adoption in the first instance.
This type of adoption required two steps away from the traditional parentage rules that assigned legal parent status on the basis of biology for mothers and on the basis of marriage (to the mother) for their husbands. Courts recognized, first, that a child can have two legal parents of the same sex and, second, that a legal mother can consent to share her parental rights with another adult without severing her own ties with the child. Second-parent adoption is predicated on the express consent of a recognized legal parent (either one who gave birth to the child or one who has already adopted the child).
But Partner in Doe v. Doe is not entitled to adopt Mother’s child, even though the state now clearly permits a same-sex partner to adopt, without Mother’s consent. And Mother does not consent. Does that mean Partner has no rights?
The Role of Constitutional Parental Rights
Does Partner have any other basis for seeking to maintain a relationship with the child over the objection of Mother? That turns on whether she has her own claim to parental status.
The trial court dismissed Partner’s adoption claim because of the lack of Mother’s consent, but in the wake of an amended petition for “parentage” more generally, the court granted Partner visitation rights. The main issue on appeal is the validity of that visitation order. Whether a court can grant rights to Partner over Mother’s objection turns, at least in part, on the court’s conception of the relevant constitutional rights.
A legal parent’s right to exclusivity is protected by the Fourteenth Amendment, which has been interpreted since the 1920s to provide strong protection for parental rights. One aspect of those rights is the ability to exclude other people from the child’s life, whether they be teachers, friends, relatives, or caretakers. The right to exclusivity was reinforced in the U.S. Supreme Court’s ruling in Troxel v. Granville (2000), in which it held that a Washington statute that allowed any person to petition for visitation with someone else’s child based solely on the child’s best interests could not be constitutionally applied to override a mother’s decision to curtail visitation with her children’s paternal grandparents.
That ruling, although only a plurality, sharply differentiated between parents and non-parents and took a robust view of the parental right to exclude. Biological mothers cannot unilaterally exclude biological fathers because they have their own protected constitutional rights. The rights of fathers are not as strong—biology provides only the opportunity to grasp parental rights, and the father’s actions towards the child determine whether an inchoate right becomes a full-blown one. But when a father steps up, the mother’s constitutional rights are not superior, and she cannot unilaterally decide to be a single parent.
The difficulty in determining the rights of a lesbian co-parent is that courts have generally not recognized any constitutional rights for the non-biological, co-parent (in the Doe case, Partner) that are equivalent to those of unwed fathers. It is thus largely the case that her rights turn, in some fashion, on the consent or approval of the biological parent (in the Doe case, Mother).
Several state supreme courts have held that custodial or parental rights can be shared based solely on a co-parenting agreement with an unmarried partner. These rulings (discussed here) premise the sharing of parental rights on consent, just as the adoption laws do, but allow consent to be expressed in a less formal way.
A third pathway to custody or visitation for lesbian co-parents is the doctrine of de facto parentage. When recognized, this doctrine permits a court to grant parental or quasi-parental rights to a person because he or she has functioned in a parental role. But this doctrine is also predicated on the consent of an established legal parent. In its traditional formulation, the doctrine requires evidence that the legal parent actively invited and fostered the relationship between the de facto parent and the child. Thus, one cannot become the de facto parent if the child’s parent objects at the outset.
Requiring consent of the established legal parent—in lesbian co-parent cases, the biological mother—is one way to square the doctrine of de facto parentage with the biological mother’s constitutional parental rights. If she has consented to the creation of the relationship, even if informally, then she has relinquished the right to demand exclusivity if severing the de facto relationship would not be in the child’s best interests.
Some courts, however, including the Idaho Supreme Court in the recent Doe v. Doe opinion, hold that the biological mother’s constitutional rights cannot be relinquished based solely on the functional parenting by a partner, even if done with the biological mother’s consent. The court in Doe held that Idaho law does not permit a custody proceeding to be brought by a non-parent except in the narrow circumstances delineated by the legislature. Because Partner did not satisfy any of those circumstances, she could not seek custody of Mother’s child. The court relied heavily, if not exclusively, on Mother’s constitutional parental rights to reach its conclusion. As the court explained, “Mother made the decision to terminate the relationship between Child and Partner. She had the right, and while there may be a temptation to second-guess that decision, courts cannot do so. Parents have a constitutional right to care, custody, and control of their children.” The trial court order of visitation was thus reversed, and Partner’s label befitted her status. She was the parent’s partner and could be dismissed from the child’s life at the whim of the parent.
Is Consent Constitutionally Required?
Although some state courts have permitted claims of de facto parentage to proceed because they believe that proof of the established parent’s consent is adequate protection for her constitutional parental rights, others have reconciled the child’s interests, the co-parent’s rights, and the mother’s rights in a different manner. These courts do not think about co-parent claims as a dispute between a parent and a non-parent. Rather, they view them as a dispute in which both women are natural parents in the first instance based on their intent to parent and actual parenting contributions. In a dispute between two fit parents, as in the average custody fight during a divorce, courts can resolve it based on a simple best-interests-of-the-child analysis because neither adult has superior constitutional status.
In a recent opinion (analyzed here), Maryland’s highest court recognized the de facto parentage doctrine on this theory. De facto parents are not pure third parties; they stand above and are entitled to have the parent-like relationship considered in the determination of legal parental status. As the court explained, in Conover v. Conover, the “de facto parent doctrine does not contravene the principle that legal parents have a fundamental right to direct and govern the care, custody, and control of their children because a legal parent does not have a right to voluntarily cultivate their child’s parental-type relationship with a third party and then seek to extinguish it.” Courts in Delaware and New York have recently issued opinion in which they take a similar tack. In the New York case, Brooke S.B. v. Elizabeth A.C.C., the court wrote that “we do not consider whether to allow a third party to contest or infringe on [the biological parent’s] rights; rather, the issue is who qualifies as a ‘parent’ with coequal rights.”
The treatment of lesbian co-parents is still evolving, particularly as they relate to the relationship between a married mother’s child and her female spouse. The 2015 ruling in Obergefell v. Hodges, which brought marriage equality to every state, has triggered an entirely new set of questions. But the treatment of unmarried co-parents is generally unaffected by Obergefell and yet no more settled. Courts disagree about the proper conception and treatment of lesbian co-parents, and the recent Idaho ruling takes an unnecessarily narrow view of their rights.