We continue to break new ground in Massachusetts. In a same-sex marriage, a woman was entitled to share custody of two children she jointly raised with their biological mother. This is the case out of the Massachusetts Probate and Family Court of Partanen v. Gallagher.
The parties agreed that the plaintiff qualified as a “de facto parent” to the children under Massachusetts case law, the defendant biological mother argued that it was not within the power of the court to award shared legal custody to a de facto parent.
“Both parties have been equal parents to the children throughout their lives and should be afforded equal parental rights upon their separation,” he wrote. “The Court finds the authority to make such an award in the Court’s equity jurisdiction.”
As defined in the 1999 Appeals Court case E.N.O. v. L.M.M., a de facto parent is “one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent.”
In Partanen v. Gallagher, the plaintiff was deeply involved in the decision to have children, personally performed one of the artificial inseminations of the defendant, was present at both births, lived with the children and biological mother, shared child-rearing duties, and was held out as a parent to the public, health care providers, school officials and others.
From the time they decided to have children while living in Florida, plaintiff Karen Partanen and defendant Julie Gallagher had mutual responsibility and involvement in major decisions regarding the welfare of their children, Jordan and James. That continued after the couple moved to Massachusetts and eventually split up.
Even after parenting conflicts arose, the couple agreed that Partanen, the non-biological parent, was a de facto parent to the children. They disputed whether a de facto parent could seek custodial rights.
“The [Supreme Judicial Court] has not yet specifically reached the issue of whether a de facto parent may be awarded shared legal and physical custody,” the judge wrote. “In a footnote of a recent unpublished decision of the Appeals Court of Massachusetts, the Court suggested that the issue of whether a de facto parent may be awarded custody is still an undecided question.”
The SJC has ruled, however, in a custody battle between a biological parent and a de facto parent. In its 2009 decision in R.D. v. A.H., the SJC determined that a judge “correctly ruled that the de facto parent, in seeking appointment as permanent guardian with custody, has the burden of proving by clear and convincing evidence that the legal parent was legally unfit.”
In that case, the SJC looked to the statute governing custody awards for children born out of wedlock, G.L.c. 209C, §10, and construed the word “parent” to mean “biological parent.”
The probate judge on Partanen v. Gallagher, Judge Casey did not feel bound by that determination, however.
“The Court finds that the present case is distinguishable from R.D. v. A.H.,” Casey wrote. “Unlike R.D., Karen did not enter the children’s lives after they were several years old. Karen was part of the decision to create a family. Karen and Julie presented themselves to medical providers as partners who were starting a family. Although at various points prior to this litigation, marriage and adoption were options for the parties, both these options require assent.”
Casey noted that while R.D. brought her petition for custody under the guardianship statute, Partanen brought a complaint to establish de facto parentage pursuant to the court’s equity jurisdiction. The judge also pointed out that other jurisdictions “have held that de facto parents have the same rights and responsibilities as a biological or adoptive parent, including the right of shared legal custody if it is in the children’s best interests.”
“Both parties have been equal parents to the children throughout their lives and should be afforded equal parental rights upon their separation,” Casey wrote. “The Court finds the authority to make such an award in the Court’s equity jurisdiction.”
In addition to the court’s equity jurisdiction, Casey relied on a gender-neutral reading of G.L.c. 209C, §6, which states: “In all actions under this chapter a man is presumed to be the father of a child and must be joined as a party if … while the child is under the age of majority, he, jointly with the mother, received the child into their home and openly held out the child as their child.”