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NOTES
TURNING PARENTAL RIGHTS INTO
PARENTAL OBLIGATIONS––HOLDING
SAME-SEX, NON-BIOLOGICAL PARENTS
RESPONSIBLE FOR CHILD SUPPORT
INTRODUCTION
In the last thirty years the United States has experienced a growth in
the number of openly homosexual parents who are raising children. In
1976, it was estimated that there were between 300,000 and 500,000 gay
and lesbian biological parents,1 while 1997 estimates show that there are
between six and fourteen million children being raised by up to ten million
homosexual parents in the United States.2 Additionally, data from the 2000
Census indicates that of the 5.5 million people living with a partner out of
wedlock, 594,000 share their home with a same-sex partner.3 Concurrent
with this growth, many areas of the law have been overhauled as well, in an
attempt to keep up with changing family structures, though much
1. NAT’L ADOPTION INFO. CLEARINGHOUSE, U.S. DEP’T OF HEALTH & HUM. SERVS., Gay
and Lesbian Adoptive Parents: Resources for Professionals and Parents 1 (Apr.
2000), available at http://naic.acf.hhs.gov/pubs/f_gay/f_gay.pdf.
2. Erica Gesing, Note, The Fight to be a Parent: How Courts Have Restricted the
Constitutionally-Based Challenges Available to Homosexuals, 38 NEW ENG. L. REV.
841, 845 (2004).
3. TAVIA SIMMONS & MARTIN O’CONNELL, U.S. CENSUS BUREAU, Married-Couple and
Unmarried-Partner Households: 2000, 1 (Feb. 2000), available at
http://www.census.gov/prod/2003pubs/censr-5.pdf. This estimate only includes same-
sex partners who live together when one of the partners is a “householder.” Id. at 2.
The person in whose name a house or apartment is owned or rented is considered a
“householder” for the purposes of the Census. Id. The category of “unmarried
partner” was only added to the Census questionnaire in 1990, representing a shift in
the number of people, both homosexual and heterosexual, living together out of
wedlock. Id.
921
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expansion and restructuring is still needed.
Despite these numbers, and the fact that they are constantly
increasing, in many states homosexual parents are still not guaranteed all of
the same rights as similarly-situated heterosexual parents.4 Not only are
there differences among the states’ laws, an inevitability since the Defense
of Marriage Act (DOMA)5 codified lawmakers’ intent to make marriage a
state issue,6 but also, in some states, the laws appear contradictory and do
not evidence a state-wide trend in favor of or against gay rights.
Massachusetts is a prime example of this inconsistency. On November 17,
2003, Massachusetts’ highest court, the Supreme Judicial Court (SJC),
opined that it was contrary to the state’s constitution to prohibit same-sex
couples from marrying.7 On May 17, 2004, the state became the first in the
nation to allow same-sex marriages.8 One year to the day after the SJC
heard arguments in the Goodridge case, the court heard arguments in T.F.
v. B.L.,9 in which a woman sued her former same-sex partner for child
support for the child conceived during the couple’s relationship and born
months after the relationship ended.10 In an opinion that surprised many
following the case, the SJC, comprised by the same justices that decided
4. For more information about the evolution of laws in this area, particularly those
created and abolished in the 2004 election, see infra Part I.
5. Pub. L. No. 104-199, 110 Stat. 2419 (codified at 28 U.S.C. § 1738C, 1 U.S.C. § 7
(2000)). DOMA also defined “marriage” to mean “a legal union between one man
and one woman as husband and wife” and “spouse” to mean “a person of the opposite
sex who is a husband or a wife,” when those words are used in the Code. 1 U.S.C. § 7
(2000).
6. “No State … shall be required to give effect to … a relationship between persons of
the same sex that is treated as a marriage under the laws of such other State.…” 28
U.S.C. § 1738C (2000).
7. See generally Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
8. Id. The road from the Goodridge decision to the altar was not without potential
hurdles for Massachusetts’ same-sex couples, however. The Massachusetts legislature
spent considerable time debating amendments to the Massachusetts Constitution that
would have rendered the Goodridge decision moot. See, e.g., S.B. 2175, 183rd Gen.
Ct., Reg. Sess. (Mass. 2003) (proposing to allow civil unions but ban same-sex
marriages). Ultimately, no amendment was passed by the Legislature prior to May 17,
2004, when the marriages began. Cases were also filed by “concerned” members of
the community, many of whom were religious conservatives seeking to extend the
stay on same-sex marriages beyond the May 17 deadline. See, e.g., Doyle v.
Goodridge, No. SJC 2004-09254 (Mass.) (appeal from Single Justice
Order/Judgment) (arguments before the SJC were held on May 2, 2005). This action
was filed by C. Joseph Doyle of the Catholic Action League of Massachusetts, who
sought to impose a stay on the issuance of marriage licenses to same-sex couples.
9. 813 N.E.2d 1244 (Mass. 2004).
10. See id.
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Goodridge, wrote in T.F. that the mother’s former partner could not be held
to pay child support as a result of her participation in and encouragement of
T.F.’s artificial insemination.11
Viewing the SJC’s opinions in Goodridge and T.F. in conjunction, as
one must in order to get a real sense of family law in Massachusetts, there
is a noticeable absence of clearly delineated lines when it comes to
determining child support obligations there.12 Instead, judges will face new
arguments and difficult questions when it comes to determining whether an
individual is a parent for the purpose of child support,13 and it would seem
that the issue of a parent’s intent will be more crucial than ever. This Note
proposes that as a result, there will be new “categories” of same-sex parents
appearing before Massachusetts courts in child support disputes. This Note
further argues that whether and when same-sex couples marry will play a
great role in child support determinations. For example, a couple that has
children together but never marries despite a decades-long relationship
together may appear to have less intent to remain together than a couple
that marries and divorces quickly.
The birth of children to these couples further complicates the issue, as
children born before the marriage will be considered the step-children of
the non-biological parent should the couple later marry, while children born
after the marriage may be presumed to be the children of both. All of this
depends on how the courts choose to apply currently existing statutes to
same-sex married couples.14 As a result, judges will have to consider more
than biology, behavior and psychological bonds with the children; they will
have to consider each parent’s intent and focus on actions leading up to the
child’s conception in addition to actions after the child’s birth when
determining whether an individual is a parent for the purposes of child
support.15
This Note discusses the current status of same-sex couples’ rights as
they relate to marriage and children,16 and addresses the laws and
procedures that apply when same-sex couples become parents to children
who represent, at least in part, the couples’ genetic makeup. Part II of this
Note discusses the rights to custody and visitation as they are afforded to
11. See id.
12. See Recent Cases, Family Law––Unmarried Couples––Massachusetts Supreme
Judicial Court Holds That a Former Domestic Partner Need Not Fulfill Promises to
Support a Child Born After the Relationship Has Dissolved, 118 HARV. L. REV. 1039,
1042 (2005) [hereinafter Recent Cases].
13. See id. at 1042.
14. See infra Part V.
15. See infra Part V.
16. See infra Part I.
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gay and lesbian non-biological parents after the dissolution of their child-
bearing relationships.17 Part III of this Note addresses the theories courts
use to justify their custody and visitation awards to same-sex non-
biological parents, as well as the various ways courts have applied these
theories to child support determinations. Part IV discusses the facts of T.F.
v. B.L. and the arguments made by the parties in their briefs to the SJC. Part
V of this Note discusses the effect that the decision in T.F. will have on
couples who marry as a result of Goodridge and how parent-child
relationships will be viewed differently by the court depending on when
and how the parents’ relationship originated.
I. SAME-SEX COUPLES’ RIGHTS
A. Marriage, Civil Union and Domestic Partnership
In the last ten years, states laws have experienced a dramatic shift
from an overwhelming silence about homosexuality, to a more prominent
acknowledgment of it. Interestingly, however, the shift has been away from
silence in both directions––providing more rights in some states and
codifying the lack of rights in other states. In the 2004 election, eleven
states passed laws that would ban same-sex marriage,18 while barely a year
earlier, the Massachusetts SJC ruled that it was against the state’s
constitution to bar same-sex couples from marrying,19 and in May 2004 the
nation’s first gay marriages took place there.
17. The law in this area will continue to expand, particularly as the couples that married
in Massachusetts after May 17, 2004 begin to divorce. The Massachusetts Registry of
Vital Records reports that as of December 10, 2004, when the first same-sex divorce
case was filed in Suffolk County, Massachusetts, “at least 4,266 gay marriage
certificates ha[d] … been issued.…” Associated Press, First Gay Marriage, Now Gay
Divorce (Dec. 10, 2004), available at http://www.foxnews.com/story/
0,2933,141198,00.html. Although there is no infrastructure in place to track gay
divorce filings, there will undoubtedly be more in the coming months and years. The
National Center for Health Statistics reports that there is a twenty percent chance of a
first marriage ending in separation or divorce within five years, while there is a forty-
nine percent chance that a “premarital cohabitation” will dissolve within five years.
NAT’L CTR. FOR HEALTH STATISTICS, New Report Sheds Light on Trends and Patterns
in Marriage, Divorce, and Cohabitation (July 24, 2002), available at
http://www.cdc.gov/nchs/pressroom/02news/div_mar_cohab.htm. These numbers do
not distinguish between same-sex and opposite-sex partnerships. See id.
18. Voters in Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North
Dakota, Ohio, Oklahoma, Oregon, and Utah passed such amendments. CNN, Election
Results, at http://www.cnn.com/ELECTION/2004/pages/results/ballot.measures/ (last
visited Apr. 14, 2005).
19. See generally Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
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Just weeks before the SJC issued its landmark Goodridge decision in
November of 2003, a New Jersey court declined to find fault with the
state’s ban on same-sex marriage.20 On January 8, 2004, however, the New
Jersey legislature took action, passing the Domestic Partnership Act, which
was signed into law by Governor James McGreevey days later.21 The New
Jersey law allows qualified individuals, those of the same sex or of
opposite sexes who are over the age of sixty-two, to register as domestic
partners.22 By registering, domestic partners are afforded statutory
protection through the state’s Law Against Discrimination.23 These rights
include hospital visitation rights, the ability to make medical or legal
decisions for their partners, should they become incapacitated, and a
personal exemption under the state’s gross income tax.24 Additionally, the
law requires insurance companies to offer the same health care coverage to
the domestic partners of state employees as is available to married
heterosexual employees’ spouses and provides other insurance-related
benefits depending on the partners’ employment by a state or private
employer.25
Effective January 1, 2005, individuals registered as domestic partners
in California began receiving notice about changes to the domestic
partnership laws that changed both the benefits provided to them, and the
responsibilities imposed upon them.26 The new laws provide, in part, that in
order to end a domestic partnership “it will be necessary under certain
circumstances to participate in a dissolution proceeding in court.…”27 In
addition to the change in termination procedure, the new law provides that,
“[r]egistered domestic partners shall have the same rights, protections and
20. Joanna Grossman, Two States Offer Different Legal Paths on Same-Sex Marriage
(Nov. 20, 2003), at http://www.cnn.com/2003/LAW/11/20/fl.grossman.samesex/
index.html.
21. N.J. STAT. ANN. § 26:8A-1 (West Supp. 2004); see also Joanna Grossman, The New
Jersey Domestic Partnership Law (Jan. 13, 2004), at http://writ.news.findlaw.com/
grossman/20040113.html. Governor McGreevey resigned from his post in August of
2004 after announcing that he had an adulterous affair with a man, saying that the
difficulties that lay ahead for him and his family would render him unable to perform
his duties as governor. CNN, New Jersey Governor Quits, Comes out as Gay (Aug.
13, 2004), at http://www.cnn.com/2004/ALLPOLITICS/08/12/mcgreevey.nj/index.
html.
22. N.J. STAT. ANN. § 26:8A-1.
23. Id. § 10:5.
24. Id. § 26:8A-1.
25. Id.; see also Laura Mansnerus, New Jersey to Recognize Gay Couples, N.Y. TIMES,
Jan. 9, 2004, at B1.
26. CAL. FAM. CODE. § 299.3(a) (West 2004).
27. Id.
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benefits, and shall be subject to the same responsibilities, obligations, and
duties under law … as … spouses.”28 Specifically, the statute provides that
“[t]he rights and obligations of registered domestic partners with respect to
a child of either of them shall be the same as those of spouses.”29 Besides
California and New Jersey, the District of Columbia, Hawaii, and Maine
have domestic partnership laws that provide a selection of rights to same-
sex couples.30
Vermont allows same-sex couples to enter into civil unions for the
purpose of providing individuals who are “of the same sex and therefore
excluded from the marriage laws of th[e] state” with the opportunity to
obtain the benefits and protections offered to married couples.31 The law
provides that “[p]arties to a civil union shall have all the same benefits,
protections and responsibilities under law … as are granted to spouses in a
marriage.”32
B. Adoption
Because it remains biologically impossible for same-sex couples to
create children on their own (though the necessary technologies are in the
process of being developed and the advancement of stem cell research may
be the solution) these families generally must rely on existing reproductive
technologies or adoption to provide them with the children they desire.
Just thirty years ago, adoption by single people “wasn’t done.”33
Some states even had laws prohibiting single parent adoption.34 In the last
twenty years, however, the country has experienced “a steady, sizable
increase in the number of single parent adoptions.”35 Now, “[e]very state
28. Id. § 297.5(a) (emphasis added).
29. Id. § 297.5(d). Though litigation on this issue has not yet arisen, one can infer from
this provision that a domestic partner would be responsible for child support to the
same extent as spouses.
30. HUM. RIGHTS CAMPAIGN, Marriage/Relationship Laws: State by State, at
http://www.hrc.org/Template.cfm?Section=Center&CONTENTID=20716&TEMPLA
TE=/TaggedPage/TaggedPageDisplay.cfm&TPLID=66 (2004) (discussing and
updating the status of domestic partnership and same-sex marriage laws nationally).
31. VT. STAT. ANN. tit. 15, §§ 1201-02, 1204 (2002); see also GAY & LESBIAN
ADVOCATES & DEFENDERS, Civil Marriage for Same-Sex Couples: The Facts 18-19,
at http://www.glad.org/rights/CivilMarriage_TheFacts.PDF (July 2003) [hereinafter
GLAD, Civil Marriage].
32. VT. STAT. ANN. tit. 15, § 1204.
33. NAT’L ADOPTION INFO. CLEARINGHOUSE, U.S. DEP’T OF HEALTH & HUM. SERVS.,
Single Parent Adoption: What You Need to Know 1 (1994), at http://naic.acf.hhs.gov/
pubs/f_single/f_single.cfm (last visited Apr. 14, 2005).
34. Id.
35. Id.
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permits unmarried individuals to adopt” children,36 but not all states permit
single homosexuals to adopt. While only Florida statutorily bans
homosexuals from adopting,37 other states’ laws contain similar
discriminatory language.38 Even more surprising is that some of the other
states whose statutes previously contained discriminatory language omitted
the language only within the last handful of years.39
One option that in recent years became available to same-sex couples
seeking to legalize their relationships with their children is second-parent
adoption.40 With the exception of step-parent adoptions, which arise when
36. NAT’L CTR. FOR LESBIAN RIGHTS, Adoption by Lesbian, Gay and Bisexual Parents:
An Overview of Current Law 4, available at http://www.nclrights.org/publications/
pubs/adptn0204.pdf (Jan. 2004).
37. FLA. STAT. ch. 63.042(3) (2004).
38. Mississippi’s statute expressly provides “[a]doption by couples of the same gender is
prohibited.” MISS. CODE. ANN. § 93-17-3(2) (2004). The Utah legislature amended its
adoption statute in 2000 to read: “A child may not be adopted by a person who is
cohabiting in a relationship that is not a legally valid and binding marriage under the
laws of this state … cohabiting means residing with another person and being
involved in a sexual relationship with that person.” UTAH CODE ANN. § 78-30-1(3)(b)
(amended by 2000 Utah Laws 208, § 5(b)). As a result, cohabiting homosexual
couples may not adopt children, and neither may a homosexual individual who is
living with his or her same-sex partner. See id. Though Connecticut law prohibits
discrimination against prospective adoptive parents on the basis of race, color, or
national origin, it presumably allows sexual orientation to be a consideration when
evaluating a prospective adoptive parent for fitness to adopt, despite statutory
guarantees prohibiting discrimination based on sexual orientation. See CONN. GEN.
STAT. § 45a-726a (2004); NAT’L ADOPTION INFO. CLEARINGHOUSE, U.S. DEP’T OF
HEALTH & HUM. SERVS., Parties to an Adoption, available at http://naic.acf.hhs.gov/
general/legal/statutes/parties.pdf (Mar. 2004). Additionally, an Alabama House Joint
Resolution notes the legislature’s intent “to prohibit child adoption by homosexual
couples.” H.J. Res. 35, 98th Leg., Reg. Sess. (Ala. 1998).
39. New Hampshire enacted legislation in 1973, which provided that anyone except
minors could adopt. 1973 N.H. Laws 266:1. This legislation was in effect for fourteen
years. Id. In 1987, however, lawmakers there spent a great deal of time to amend the
statute to read, “any individual not a minor and not a homosexual may adopt.” 1987
N.H. Laws 343:3 (emphasis added). After twelve years the New Hampshire
legislature saw the error of its ways, and revised the statute again, this time quietly
removing the words “and not a homosexual” from the text. 1999 N.H. Laws 18:2.
40. Second-parent adoption is “[a]n adoption by an unmarried cohabitating partner of a
child’s legal parent, not involving the termination of a legal parent’s rights; esp., an
adoption in which a lesbian, gay man, or unmarried heterosexual person adopts his or
her partner’s biological or adoptive child.” BLACK’S LAW DICTIONARY 53-54 (8th ed.
2004). The first second-parent adoptions were approved in San Francisco, in the mid-
1980s, when the National Center for Lesbian Rights (formerly the Lesbian Rights
Project) developed the idea and pushed for its recognition by the courts. NAT’L CTR.
FOR LESBIAN RIGHTS, supra note 36, at 7.
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the adopting party is the “legal spouse” of the parent, a crucial element of
adoption is parental consent, unless the child is an orphan.41 Second-parent
adoptions are effectively step-parent adoptions that do not require the
parents to be married.42 The process of second-parent adoption is quite
similar to step-parent adoption; in both instances the parent seeking to
adopt “already functions in the role of a parent.”43
Second-parent adoptions are permitted by statute or appellate court
rulings in California, Connecticut, Illinois, Massachusetts, New Jersey,
New York, Pennsylvania, and Vermont.44 In California, same-sex partners
are permitted to apply for step-parent adoptions under the state’s domestic
partnership laws.45 In addition, in eighteen other states second-parent
“adoptions have been granted at the trial court level, which means that they
have … been approved in certain counties only.”46 These states are
Alabama, Alaska, Delaware, Hawaii, Indiana, Iowa, Louisiana, Maryland,
Michigan, Minnesota, Nevada, New Hampshire, New Mexico, Ohio,
Oregon, Rhode Island, Texas and Washington.47
Possibly the most important right conferred by second-parent
adoption is that the relationship established is allowed to continue even
after the termination of the parents’ relationship with each other.48
II. PARENTAL RIGHTS FOLLOWING DISSOLUTION
In order to understand the imposition of child support obligations on
non-biological, non-legal parents, it is necessary to first understand the
rights that are often granted to such individuals.
Presently, there is a vast disparity in the ways that states resolve
disputes over custody and visitation when the dissolving couple is
comprised of same-sex partners.49 According to June Carbone, a professor
at Santa Clara University School of Law, “[m]odern child support practice
41. See NAT’L CTR. FOR LESBIAN RIGHTS, supra note 36, at 6.
42. Id.
43. Maureen H. Monks, Joint Adoption and Second-Parent Adoption by Unmarried
Couples, MASS. LESBIAN & GAY BAR ASSOC., at http://www.mlgba.org/review/
adopt.htm (last updated Jan. 16, 1998).
44. HUM. RIGHTS CAMPAIGN FOUND., Second-Parent Adoption, at http://www.hrc.org/
Template.cfm?Section=Adoption&CONTENTID=18341&TEMPLATE=/ContentMa
nagement/ContentDisplay.cfm (last visited Apr. 14, 2005).
45. Id.
46. Id.
47. Id.
48. See NAT’L CTR. FOR LESBIAN RIGHTS, supra note 36, at 8.
49. See Kyle C. Velte, Towards Constitutional Recognition of the Lesbian-Parented
Family, 26 N.Y.U. REV. L. & SOC. CHANGE 245, 256 (2000).
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… erases the distinctions between marital and nonmarital births and treats
parent-child ties as more lasting than spousal ones.…”50 Case law, statutes,
and commentary disagree, however, evincing the dramatic difference in
treatment that homosexuals and their children receive in many
jurisdictions,51 where the courts’ “decisions reflect an unwavering
commitment to the nuclear family structure.”52 Without legal protections,
non-biological and non-legal parents are effectively “legal strangers” to
their children and in the event of family dissolution these parents have no
rights with respect to the children, regardless of their prior involvement in
the children’s lives.53 As more same-sex couples began to bring their
disputes over children before the courts, a shift from outright rejection of
lesbian and gay parented families toward acceptance of these families
appeared, as indicated by the courts’ increasing willingness to grant
standing to non-biological, non-legal parents seeking custody and
visitation.54
A. Visitation
All fifty states have enacted legislation to allow non-parents to visit
children with whom they demonstrate a worthy relationship.55
The Connecticut Superior Court, for example, granted standing to a
woman whose former partner gave birth to a child during their ten-year
50. June Carbone, Child Support Comes of Age: An Introduction to the Law of Child
Support, in CHILD SUPPORT, THE NEXT FRONTIER 3, 4 (J. Thomas Oldham &
Marygold S. Melli eds., 2000). June Carbone is the Presidential Professor of Ethics
and the Common Good at Santa Clara University School of Law and has published a
host of articles on family law and parental rights. See Professor Carbone’s Home
Page, at http://www.scu.edu/law/FacWebPage/Carbone/ (last visited Apr. 14, 2005).
51. See, e.g., FLA. STAT. ch. 63.042 (1977) (prohibiting homosexuals from adopting); see
also In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis. 1995) (denying visitation and
custody to biological mother’s former partner). “[C]ourt decisions have tended not to
recognize the extent to which social conditions shape women’s reproductive choices,”
and as a result, some courts have done more to promote the rights of fathers than
mothers by ignoring the composition of the childbearing relationship. Kim M.
Blankenship et al., Reproductive Technologies and the U.S. Courts, in GENDER AND
AMERICAN LAW: THE IMPACT OF THE LAW ON THE LIVES OF WOMEN 150, 169 (Karen J.
Maschke ed., 1997).
52. Blankenship et al., supra note 51, at 169. The term “nuclear family” refers to a
married man and woman living together with their offspring. Developments in the
Law––The Law of Marriage and Family, 116 HARV. L. REV. 1996, 2001 n.15 (2003).
53. See Velte, supra note 49, at 256.
54. See id. at 249.
55. See id. at 255-56.
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relationship.56 The effect of granting standing in this case was that the non-
biological mother could seek visitation with the child after the parties’
relationship dissolved.57 The following year, a New York court found that
the lack of biological relationship between the children and the former
same-sex partner of their biological mother was not an absolute bar to the
ex-partner’s request for visitation with the children.58 Finally, in 2001, the
Pennsylvania Supreme Court held that because a biological mother
consented to her former partner’s performance of parental duties for the
child born during their relationship, the former partner had standing to seek
visitation with the child after the women’s relationship dissolved.59
The Wisconsin Supreme Court outlined an explicit test in In re
H.S.H.-K60 to determine whether an individual should be granted visitation
rights. The test requires the court to determine whether the party seeking
visitation has a “parent-like relationship with the child,” and whether “a
significant triggering event justifies state intervention in the child’s
relationship with a biological or adoptive parent.”61 Further, the court
detailed four factors that must exist to find a sufficient “parent-like”
connection between the child and the non-biological parent. Those factors
are:
(1) that the biological or adoptive parent consented to, and
fostered, the petitioner’s formation and establishment of a
parent-like relationship with the child; (2) that the petitioner and
the child lived together in the same household; (3) that the
petitioner assumed the obligations of parenthood by taking
significant responsibility for the child’s care, education and
development, including contributing towards the child’s support,
without the expectation of financial compensation; and (4) that
the petitioner has been in a parental role for a length of time
sufficient to have established with the child a bonded, dependent
62
relationship parental in nature.
These four factors have become pivotal in decisions on custody and
visitation, even when the court is merely interpreting an agreement entered
into by the parties.63 The New Jersey Supreme Court adopted the factors in
56. See generally Laspina-Williams v. Laspina-Williams, 742 A.2d 840 (Conn. Super. Ct.
1999).
57. See id. at 844.
58. See generally J.C. v. C.T., 711 N.Y.S.2d 295 (N.Y. Fam. Ct. 2000).
59. See T.B. v. L.R.M., 786 A.2d 913, 914 (Pa. 2001).
60. 533 N.W.2d 419 (Wis. 1995).
61. Id. at 435.
62. Id. at 435-36 (footnote omitted).
63. See Patricia M. Logue, The Rights of Lesbian and Gay Parents and Their Children,
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V.C. v. M.J.B.,64 in which a woman sought either custody or visitation with
her former partner’s biological child.65
The landmark case in Massachusetts, E.N.O. v. L.M.M.,66 was decided
in 1999 by the SJC. In E.N.O., a lesbian couple of thirteen years jointly
became parents, with L.M.M. as the biological parent.67 The women
executed co-parenting agreements both before and after the child’s birth,
which expressly indicated the parties’ intent to both act as parents to the
child.68 The agreement further provided that E.N.O. was to retain her status
as a parent even if the parties separated.69 When the parties did eventually
separate, L.M.M. refused to allow E.N.O. to have access to their son, and
E.N.O. filed a petition seeking contact with the child.70 The Probate and
Family Court awarded her temporary visitation rights, which were later
upheld by the SJC.71 The court relied on the theory of de facto parenthood
to reach this conclusion.72
The standard generally used to determine visitation cases is
considerably less stringent than that applied to custody actions.73 In a
visitation action, a non-biological parent must only “convince a court to
interfere with the legal parent’s rights for some limited amount of time”
and prove that it is in the best interests of the child to grant visitation;
granting custody can have a much longer-lasting impact on a child’s life,
necessitating a more stringent burden of proof.74
B. Child Custody
The purpose of a child custody determination is to “vest[] authority in
[an] adult to make decisions that affect the child’s life.”75 In some
jurisdictions, courts will award joint custody, allowing two parents to “have
an equal voice in making decisions and recogniz[ing] the advantages of
18 J. AM. ACAD. MATRIMONIAL LAW. 95, 124-25 (2002).
64. 748 A.2d 539 (N.J. 2000); see also Logue, supra note 63, at 124.
65. V.C. v. M.J.B., 748 A.2d 539, 545-465 (N.J. 2000).
66. 711 N.E.2d 886 (Mass. 1999), cert. denied, 528 U.S. 1005 (1999).
67. Id. at 888.
68. Id. at 889.
69. Id.
70. Id.
71. Id.; see also Mary L. Bonauto et al., Equity Actions Filed by De Facto Parents, in 1
PATERNITY AND THE LAW OF PARENTAGE IN MASSACHUSETTS § 11.2 (Pauline Quirion
ed., 2002).
72. Bonauto et al., supra note 71, at § 11.2; see also infra Part III.D.
73. See Velte, supra note 49, at 255.
74. Id. at 254-55.
75. Id. at 254.
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shared responsibility for raising children.”76 Joint custody may be awarded
when the court finds that (1) it is in the child’s best interests, and (2) “both
parents are fit and proper persons to be awarded custody.”77
Massachusetts recognizes four types of custody: sole legal custody,
shared legal custody, sole physical custody and shared physical custody.78
Sole legal custody means that only one parent has “the right and
responsibility to make major decisions [for the child] regarding …
education, medical care and emotional, moral and religious
development.”79 Shared legal custody allows both parents to be involved in
such decisions.80 Sole physical custody means that the child lives with and
is supervised by only one parent, though the other parent may be permitted
visitation rights, “unless the court determines that such visitation [is] not …
in the best interest of the child.”81 Shared physical custody means that the
child resides with both parents and essentially divides time between the two
households, allowing each parent to have “frequent and continued contact
with” and supervision over the child.82 Ultimately, a parent with custody
has more control over daily decisions regarding the care for, supervision
over, and education of the child than a parent with some lesser right, such
as visitation.83
In contrast to the fairly straightforward custody and visitation laws
effective upon divorce, the laws governing separations of unmarried
couples, particularly where children are involved, are piecemeal at best.84
Whether relationships between non-legal parents and their children are
protected depends a great deal on the jurisdiction, which results in vast
disparities among the states.85
At one end of the spectrum are states like Illinois and Florida which,
in 1996 and 2000 respectively, chose to apply the “nexus” test to determine
whether custody should be awarded to homosexual parents in divorce
proceedings from their former heterosexual spouse.86 In its simplest form,
the nexus test treats sexual orientation as neutral unless the parties
76. 24A AM. JUR. 2D Divorce and Separation § 940 (1998).
77. Id.
78. See MASS. GEN. LAWS ch. 208, § 31 (2002).
79. Id.
80. Id.
81. Id.
82. Id.
83. See Velte, supra note 49, at 254.
84. See id. at 256.
85. See id.
86. Logue, supra note 63, at 101.
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demonstrate otherwise.87 Though courts employing this test and others like
it often phrase their opinions such that sexual orientation may be a
distinguishing factor in a future case, the focus of these courts remains on
the “conduct, behavior and any effects on children, rather than on sexual
orientation itself.”88
At the other end of the spectrum are states like Massachusetts that
have explicitly prohibited the consideration of a parent’s sexual orientation
in child custody determinations.89 Section six of the Massachusetts
paternity statutes90 addresses the issue of children born out-of-wedlock and
establishes a presumption of paternity91 in a husband for any child born to
his wife during the marriage, regardless of how the child was conceived.92
The statute has been used to determine more than paternity, however. The
statute is applicable when an individual, who has functioned for a time as a
co-parent, but is not a legal parent, seeks to dissolve his or her relationship
with the biological parent, and simultaneously formalize (or contest) his or
her rights or obligations as to the child.93
Nationally, there remain discrepancies among the states. In 1996, the
Pennsylvania Superior Court found that the former domestic partner of a
biological parent had standing to seek partial custody because the non-
biological parent and the child were members of a non-traditional family.94
The previous year, the Wisconsin Supreme Court held that while a non-
biological mother did not have standing to seek custody of her former
partner’s biological child, the trial court had the power to hear a petition for
87. Id.
88. Id.
89. Bezio v. Patenaude, 410 N.E.2d 1207, 1216 (Mass. 1980) (holding that a parent’s
sexual orientation is not in itself evidence of parental unfitness); see also Doe v. Doe,
452 N.E.2d 293, 296 (Mass. 1983) (declaring a mother’s lesbian lifestyle was not
evidence of unfitness).
90. MASS. GEN. LAWS ch. 209C, § 6 (2002).
91. Id.; see, e.g., In re Walter, 562 N.E.2d 474 (Mass. 1990) (holding that neither the
Boston Children’s Service Association, nor a guardian ad litem could bring actions to
contest the presumed paternity of the mother’s husband, who was separated from the
mother and who knew nothing about the child until after the initiation of this action,
when neither the former husband nor the mother wanted responsibility for the child,
who had been turned over to social services).
92. MASS. GEN. LAWS ch. 209C, § 6. Now that same-sex couples may marry in
Massachusetts, whether the children of such couples will be presumed to be the
children of both parties to the marriage remains to be decided by the courts or the
legislature. See infra Part V.
93. Mary L. Bonauto, The Rights of Parents and Non-Parents in Non-Traditional
Families, in THE NON-TRADITIONAL FAMILY: A POTPOURRI OF ISSUES FOR THE FAMILY
LAW ATTORNEY 35, 75 (Mass. Continuing Legal Educ., Inc. 1991).
94. See generally J.A.L. v. E.P.H., 682 A.2d 1314, 1316 (Pa. Super. Ct. 1996).
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visitation because, unlike the custody statutes, which were intended to be
limited, the visitation statutes were not intended to be so narrowly
construed.95 Similarly, in 2000, the New Jersey Supreme Court held that a
non-biological parent should not be awarded custody of the children she
and her former partner raised when the parties dissolved their relationship
because it was not in the children’s best interests; however, it was in the
children’s best interests to grant visitation rights to this parent.96
The disparity of states’ decisions on the issue of child custody is
indicative of the continuing debate over whether and how sexual
orientation should be considered by the courts in deciding familial issues.97
Considering that rights are more easily conferred than obligations, the case
for imposing child support responsibilities on non-biological parents
becomes even more difficult to make.98
III. FROM RIGHTS TO OBLIGATIONS: USING THE THEORIES BEHIND
CUSTODY AND VISITATION AWARDS TO JUSTIFY
CHILD SUPPORT OBLIGATIONS
It is the advancement of reproductive technologies and society’s
recognition of alternative lifestyles that have produced families
in which a biological, and therefore a legal, connection is no
longer the sole organizing principle. But it is the courts that are
required to define, declare and protect the rights of children
99
raised in these families, usually upon their dissolution.
With the majority of courts progressing toward full recognition of
non-biological parents and non-traditional families––same-sex and
opposite-sex unmarried families alike––the next logical step is to extend
these parental rights into parental obligations, in particular, child support.
Because this issue is so new to the legal system, parties to these suits are
generally forced to rely on existing theories of family law to support and
95. See In re H.S.H.-K., 533 N.W.2d 419, 423, 431 (Wis. 1995) (“A person who is not a
biological or adoptive parent may not bring an action to obtain custody of a minor
unless the biological or adoptive parent is ‘unfit or unable to care for the child’ or
there are compelling reasons for awarding custody to a nonparent.”).
96. V.C. v. M.J.B., 748 A.2d 539, 555 (N.J. 2000); see also Robin Cheryl Miller,
Annotation, Child Custody and Visitation Rights Arising from Same-Sex
Relationships, 80 A.L.R. 5th 1, 1 (2000) (discussing V.C. v. M.J.B., 748 A.2d 539
(N.J. 2000)).
97. See infra Part III.
98. See infra Part III.
99. In re A.B., 818 N.E.2d 126, 131 (Ind. Ct. App. 2004) (quoting Adoption of K.S.P.,
804 N.E.2d 1253, 1259 (Ind. Ct. App. 2004)).
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defend against claims for child support.100
Dissolution disputes arising between same-sex parents have been
resolved using a variety of existing legal theories. Courts in some
jurisdictions have held that a partner who can establish that she is a
psychological parent, or that her relationship with the child was “parent-
like,” is entitled to be treated as more than a “mere third party.”101 In a
number of other cases, however, the courts did not recognize the former
partner as anything more than a third party, evidencing the disparity in
decisions among the jurisdictions.102 Moreover, it is difficult for courts to
use non-binding precedent from other jurisdictions as a rationale for their
decisions, as only a handful of courts have ever decided this issue.103 Child
support statutes vary among the jurisdictions and few of them even provide
for awards of custody or visitation to a non-biological, non-legal parent.104
As there are no definitive answers, some courts have chosen to hide
behind a separation of powers argument, exercising judicial restraint in
refusing to hear such claims, and arguing that the legislature should bear
the burden of establishing statutes to deal with these issues before the
courts will decide them.105 Other courts, such as the Indiana Court of
100. See, e.g., Liston v. Pyles, No. 97APF01-137, 1997 Ohio App. Lexis 3627, at *16-18
(Ohio Ct. App. Aug. 12, 1997); see also Washington v. Wood, 34 P.3d 887, 891
(Wash. Ct. App. 2001); L.S.K. v. H.A.N., 813 A.2d 872, 877 (Pa. Super. Ct. 2002);
Chambers v. Chambers, No. CN00-09493, 2002 WL 1940145, at *8-9 (Del. Fam. Ct.
Feb. 5, 2002).
101. Miller, supra note 96, at 12. The court balances the following elements to determine
whether a person is a psychological parent: “the substantial nature of the relationship
between the third party and the child; whether or not the third party and the child
actually lived together; and whether the unrelated third party had previously provided
financial support for the child.” V.C., 748 A.2d at 550-51 (citations omitted).
102. See Miller, supra note 96, at 13.
103. See, e.g., Chambers, 2002 WL 1940145, at *2-4 (comparing the facts presented to
those found in Karin T. v. Michael T., 484 N.Y.S.2d 780 (N.Y. Fam. Ct. 1985)).
104. See Miller, supra note 96, at 25 (discussing Curiale v. Regan, 272 Cal. Rptr. 520 (Ct.
App. 1990) (declining to award custody to a mother’s former same-sex partner
because there was no statutory authority for such an award)). But see Chambers, 2002
WL 1940145 (finding that because the legislature had not defined “parent” in the
applicable child support statutes, the court was required to define that term, and in so
doing, the court found that the non-biological mother was not only entitled to
visitation rights but was also obligated to pay child support).
105. See Wood, 34 P.3d at 889 (declining to “create a new cause of action for support of a
child by a non-parent”); see also Mary L. Bonauto, Civil Marriage as a Locus of Civil
Rights Struggles, 30 HUM. RTS. 3, 4 (2003). But see L.S.K., 813 A.2d at 878 (holding
that despite the absence of legislative action, the application of equitable rules was in
the child’s best interests, therefore the non-biological parent was obligated to pay
child support).
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Appeals, have implored their legislatures to act, while simultaneously
finding a way to address the problem using the means available to them.106
Of late, there has been a greater willingness by courts to recognize
child support claims, using legal devices such as in loco parentis, equitable
estoppel and de facto parenthood, as well as other contract theories.107
Additionally, as states begin to provide mechanisms for same-sex couples
to legalize their relationships, such as domestic partnerships, civil unions
and marriages, statutes that were previously inapplicable are now being
applied to the children of same-sex couples with favorable results.108
Academic commentary generally favors the recognition of child support
claims under a variety of theories that include evaluation of the legal
parent’s consent, past parenting behavior of the claimant, and the
dependency and emotional ties that have developed between the claimant
and the child.109
Only in recent years have legal mothers sought enforcement of child
support obligations against their former same-sex partners, their children’s
non-legal parents, upon the dissolution of their relationships.110 This type of
litigation is different from custody and visitation cases because it is
106. See In re A.B., 818 N.E.2d 126 (Ind. Ct. App. 2004). The Indiana court
encourage[d] the Indiana legislature to help [it] address this current
social reality [of non-traditional families] by enacting laws to protect
children who, through no choice of their own, find themselves born into
unconventional familial settings. Until the legislature enters this arena,
however, we are left to fashion the common law to define, declare, and
protect the rights of these children.
Id. at 131 (citation and footnote omitted). The court went on to hold that “when two
women involved in a domestic relationship agree to bear and raise a child together by
artificial insemination of one of the partners with donor semen, both women are the
legal parents of the resulting child.” Id. at 131-32.
107. See Mary Coombs, Insiders and Outsiders: What the American Law Institute Has
Done for Gay and Lesbian Families, 8 DUKE J. GENDER L. & POL’Y 87, 94 (2001).
108. See, e.g., Kristine Renee H. v. Lisa Ann R., 16 Cal. Rptr. 3d 123 (Ct. App. 2004),
review granted Sept. 1, 2004 (applying parentage statutes to children born to same-
sex domestic partners registered in the state). This practice is particularly applicable
in Massachusetts, where same-sex couples may now marry; however, there is no
legislation in effect to provide meaning to the many statutes that may now apply to
these couples—such as the presumption of paternity statute, which refers specifically
to fathers and mothers rather than to the spouse of a parent—making application to
same-sex married couples an issue for the courts. See, e.g., MASS. GEN. LAWS ch.
209C, § 6 (2002) (creating a presumption of paternity in a man whose wife gives birth
during, or within 300 days after the termination of the marriage); see also discussion
infra notes 274-79.
109. See Renee H., 16 Cal. Rptr. 3d at 143.
110. Velte, supra note 49, at 264; see also T.F. v. B.L., 813 N.E. 2d 1244 (Mass. 2004).
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inherently more difficult to impose financial obligations on a non-legal
parent than it is to grant them parental rights. As a result of the lack of
available precedent to follow in this type of child support case, courts have
applied theories that have traditionally been used in custody and visitation
cases to determine child support obligations.111 The following is a
discussion of theories and procedures that have been applied in child
custody and visitation cases in the past and how they have been extended in
recent years to include the issue of child support determinations.112
A. The Statutory Definition of “Parent”
There are two cases in which the courts imposed child support
obligations based on the particular circumstances of the child’s birth and
the definition of the word “parent,” but not based on the legal theories
discussed in Sections B-E below. The first is Karin T. v. Michael T.113 In
this action, the Department of Social Services of Erie County, New York,
sought to recover child support payments from defendant Michael T., who
was allegedly the father of the children at issue.114 As the court analyzed the
situation, however, it was discovered that while the parties were legally
married in New York, their marriage license had been granted erroneously,
as the clerk had not required the parties to show birth certificates, which
would have indicated that Michael was a biological woman, born Marlene
(the marriage was later deemed null as a result).115 After twenty years of
living as a female, Marlene decided that she wanted to live as a man, and
thus changed her name to Michael.116 During the parties’ marriage, at
which time Marlene was living as a man, two children were born through
the artificial insemination of Karin.117 The parties executed a written
agreement naming Michael the father of any children born to his “wife.”118
Based on the theory of estoppel, the “marriage” between the parties, and a
definition of “parent” gleaned from Black’s Law Dictionary––“one who
procreates, begets, or brings forth offspring”––the court held that Michael
was a parent for the purpose of attaching support obligations.119
In the second case, Chambers v. Chambers,120 two women, Karen and
111. See infra Part III.A-E.
112. See infra Part III.A-E.
113. 484 N.Y.S.2d 780 (N.Y. Fam. Ct. 1985).
114. Id. at 781.
115. Id.
116. Id.
117. Id.
118. Id. at 782.
119. Karin T., 484 N.Y.S.2d at 784.
120. No. CN00-09493, 2002 WL 1940145 (Del. Fam. Ct. Feb. 5, 2002).
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Carol, were engaged in a same-sex relationship and lived together for
nearly three years.121 The women sanctified their relationship through a
commitment ceremony and Karen legally changed her last name to
Chambers so that the women would both have the same last name.122 Three
months after the commitment ceremony Karen underwent in vitro
fertilization.123 Carol partially funded the procedure and signed the embryo
transfer form as “partner.”124 Karen gave birth to a son on August 1, 1996,
and the parties lived together with their son intermittently for nine months,
finally separating three years later.125 The court concluded that because the
legislature failed to define “parent” in its child support statutes, the
meaning could be defined through outside sources, and used the Black’s
Law Dictionary to do so.126 The court further concluded that it
cannot simply ignore the sequence of events that transpired prior
to the onset of this litigation.… [Carol] funded in part the in vitro
fertilization process which led to the conception and birth of [her
son] and cared for him along with Karen in the same home for a
period of time after his birth; and … sought the assistance of this
court in establishing visitation with the child. On her visitation
petition she refers to herself as [his] “mother” and refers to [him]
as her “son.” …
… the court concludes that Carol … is [his] “parent” within
the meaning of the Delaware Support Statute … [and] concludes
that Carol must be equitably estopped from asserting she owes
127
no legal obligation of support to [her son].
While the court discussed estoppel in its decision, Chambers remains
unlike the majority of the cases discussed below, which were clearly
decided using the theories of estoppel, in loco parentis, de facto or
equitable parenthood, as the court relied primarily on the definition of
“parent” and the parties’ conduct in reaching its decision.128
121. Id. at *1.
122. Id.
123. Id.
124. Id. In vitro fertilization is a “procedure by which an egg is fertilized outside a
woman’s body and then inserted into the womb for gestation.” BLACK’S LAW
DICTIONARY 846 (8th ed. 2004).
125. Chambers, 2002 WL 1940145, at *1.
126. Id. at *2.
127. Id. at *10.
128. See id.; see also infra Part III.B-E.
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B. The Non-Biological Parent Stood in Loco Parentis
In loco parentis129 status turns on two main components: (1) the
parent’s prior voluntary actions; and (2) the parent’s desire to continue
exercising those rights and performing the resulting duties.130 In order to be
found to have stood in loco parentis with respect to a child, an individual
must have “assume[d] all obligations incident to the parental
relationship,”131 though it is unnecessary to adopt the child.132
An individual who is found to have stood in loco parentis is burdened
with the same liabilities and privileged with the same rights as the
biological parent.133 Unlike a biological or legal parent, however, in loco
parentis status “depends on [an] individual’s continuing intent to care for
and support a child … [as] one acting in loco parentis may terminate her
obligations at will.”134 In essence, in loco parentis status grants rights and
responsibilities to a person who voluntarily cares for and supports a child to
whom he or she is neither a biological nor legal parent,135 and because this
status turns on voluntariness, it is terminable at the will of the parent
standing in loco parentis through the discharge of “all duties incident to the
parental relationship.…”136 The voluntariness component of in loco
parentis status lends this theory to be used most often by stepparents who
seek the rights and responsibilities of parenthood during their relationship
with the child’s biological parent, but seek to be released from those
responsibilities once the relationship terminates.137
Another unique characteristic of in loco parentis status is that it
“operates independently of the [non-biological] parent’s relationship with
the biological parent,”138 therefore, it may not be revoked by the child’s
129. “Of, relating to, or acting as a temporary guardian or caretaker of a child, taking on all
or some of the responsibilities of a parent.” BLACK’S LAW DICTIONARY 803 (8th ed.
2004).
130. See infra text accompanying notes 131-43.
131. Hamilton v. Foster, 620 N.W.2d 103, 116 (Neb. 2000).
132. See Jonathan M. Purver, Whether an Individual Stood in Loco Parentis to a Child at a
Particular Time, in 28 AM. JUR. 2D Proof of Facts 545, 548 (1981). In fact, adoption
would make the issue of in loco parentis status moot as adoption renders a parent a
legal parent regardless of other factors. Id.
133. Id. at 549.
134. Carmel B. Sella, Note, When a Mother is a Legal Stranger to Her Child: The Law’s
Challenge to the Lesbian Nonbiological Mother, 1 UCLA WOMEN’S L.J. 135, 156
(1991).
135. Id.
136. Hamilton, 620 N.W.2d at 116; see also Sella, supra note 134, at 156.
137. See Sella, supra note 134, at 156.
138. Id.
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biological or legal parent.139 This is a departure from many of the other
definitions of parent-child relationships because this relationship exists
entirely isolated from the biological or legal parent.140 As a result, this
status may be conferred on an individual whom the biological or legal
parent did not wish to have such status.141 At the same time, however, the
parent who stood in loco parentis can maintain rights and obligations to the
child even after the dissolution of the parents’ relationship if he or she so
desires and if the court deems the parent-child relationship as warranting
such an extension of rights.142
As with most of the issues surrounding same-sex, non-biological
parents’ rights and obligations, the courts that have heard such cases on the
theory of in loco parentis are divided.143 In December 2002, the Superior
Court of Pennsylvania, which hears appeals from the Court of Common
Pleas involving children and families, enforced a support obligation against
a woman who had intentionally parented five children with her former
domestic partner, in L.S.K. v. H.A.N.144 The defendant non-biological
parent, H.A.N., filed a complaint for custody of the children after L.S.K.
moved with them to California from the couple’s home in Pennsylvania.145
L.S.K. subsequently filed a complaint against H.A.N. seeking child
support, which H.A.N resisted, arguing that, as a former same-sex partner,
she had so few parental rights that imposing a support obligation on her
would be inequitable.146 The court disagreed.147 The court held that it was
necessary to apply equitable rules in the children’s best interest, and
because H.A.N. had been granted visitation rights, which she exercised, she
was estopped from denying responsibility for support payments.148
139. Id.
140. Id. at 156-57.
141. Id.
142. Id.
143. See L.S.K. v. H.A.N., 813 A.2d 872 (Pa. Super. Ct. 2002) (awarding visitation and
custody to a non-biological same-sex mother and noting that she must also be
obligated to pay child support as parental rights should not be conferred without also
enforcing parental obligations). But see Nancy S. v. Michele G., 279 Cal. Rptr. 212
(Ct. App. 1st Dist. 1991) (finding that a mother’s same-sex partner was not a parent
under the theory of in loco parentis despite her lengthy relationship with the mother
and children, and therefore that she was not entitled to any form of custody).
144. 813 A.2d 872 (Pa. Super. Ct. 2002). Pennsylvania does not have a system for
registering domestic partnerships, thus this relationship had no legal validity on its
own. See id. at 877.
145. Id. at 875.
146. Id.
147. Id.
148. Id. at 875-77.
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The court in L.S.K. v. H.A.N. addressed three theories of liability, in
loco parentis, estoppel, and the issue of stepparent liability for support. The
court determined that H.A.N. stood in loco parentis because she “assum[ed]
the obligations incident to the parental relationship without going through
the formality of a legal adoption,” and thus put herself in the situation of a
lawful parent.149 The court further found that H.A.N. stood in loco parentis
long enough to warrant visitation rights, and affirmed the trial court’s
award of legal and partial physical custody to her.150 Most importantly, the
Pennsylvania court held that a parent cannot use in loco parentis status to
gain rights to custody or visitation while at the same time deny any
obligation to make child support payments, as to do so would be
inequitable.151
This Pennsylvania case is currently the only case in which a woman
successfully sought to receive child support payments from her former
same-sex partner for children conceived during their relationship based on
the theory of in loco parentis.
C. Equitable Parenthood, Estoppel and Breach of Contract Theories
Contrary to the L.S.K. holding, a Washington Court of Appeals held
that estoppel and breach of promise theories were insufficient to impose a
child support obligation on a non-biological, same-sex parent whose former
partner gave birth to a child conceived during their relationship through
artificial insemination.152 The Washington court “declined to create a new
cause of action for support by a non-parent,”153 effectively hiding behind
the veil of judicial restraint. Despite this holding, in dicta, the court said
that if it were to find that Wood was a parent, it would find that she was a
parent for all purposes, not simply for support, thus she would gain both
parental rights and obligations.154
Ironically, the Pennsylvania court faced the same situation––a lack of
precedent on which to base its decision––in L.S.K. and yet it came to the
opposite conclusion, noting that absent any contrary legislation, the court
must apply equitable considerations in determining “what is just and
necessary to protect the rights, interest and welfare of the children
involved.”155 Thus, the court held that the non-biological mother was
149. See id.
150. See L.S.K., 813 A.2d at 877.
151. See id. at 876.
152. Compare Washington v. Wood, 34 P.3d 887 (Wash. Ct. App. 2001), with L.S.K., 813
A.2d 872.
153. See id. at 887.
154. Id. at 891 n.3.
155. See L.S.K., 813 A.2d at 878.
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responsible for support.156
Some states have chosen to use contract theory to provide a remedy
for child custody and visitation. An equitable parent is “a nonbiological
parent upon whom the court confers the rights and obligations of a
biological parent based on that individual’s conduct as a parent.”157 An
individual who desires recognition as a parent and in exchange is willing to
accept the responsibilities that come with parenthood, including child
support obligations, is an equitable parent.158 The benefit of the doctrine of
equitable parenthood is that it recognizes the potential for a parent-child
relationship to exist beyond those relationships created by genetics, and
extends the benefits of that relationship to those who have “earned” the
link.159
One of the first uses of equitable estoppel in a family law context was
in Atkinson v. Atkinson,160 in which the Michigan Court of Appeals found
that a man, whose wife had a child to which he was not biologically related
during the marriage, was still considered to be the natural father to the child
because
(1) the husband and the child mutually acknowledge a
relationship as father and child, or the mother of the child has
cooperated in the development of such a relationship over a
period of time prior to the filing of the complaint for divorce, (2)
the husband desires to have the rights afforded to a parent, and
(3) the husband is willing to take on the responsibility of paying
161
child support.
The Atkinson court reasoned that it was logical to extend the
definition of estoppel to situations in which the non-biological parent
desired to be recognized as a parent, as evidenced by a willingness to
support the child and a desire for the rights to visitation and custody.162
Equitable estoppel has most often been used to prevent men from
denying paternity in an attempt to avoid having to pay child support.163
Now, however, individuals are attempting to use this theory to prevent their
156. See generally id.
157. Sella, supra note 134, at 157.
158. See Elizabeth A. Delaney, Statutory Protection of the Other Mother: Legally
Recognizing the Relationship Between the Nonbiological Lesbian Parent and Her
Child, 43 HASTINGS L. J. 177, 201-02 (1991).
159. Sella, supra note 134, at 158.
160. 408 N.W.2d 516 (Mich. Ct. App. 1987).
161. Delaney, supra note 158, at 205.
162. Id. (quoting Atkinson, 408 N.W.2d at 519).
163. See Delaney, supra note 158, at 202.
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former same-sex partners from denying their obligations to children born
during their relationships. In Liston v. Pyles,164 for example, the court did
not find merit in this argument, finding that because Liston was neither a
biological nor an adoptive parent, she was not obligated to pay child
support, as such requirements are only imposed on biological or adoptive
parents.165 The court reached this conclusion by reasoning that because
Liston did not have sufficient parental status to obligate her to pay support,
she was therefore not entitled to visitation.166 The court further reasoned
that the legislature had specifically provided for certain parties to seek
visitation rights, and a lesbian partner of a biological parent was not one of
the classes of people permitted to seek such rights.167 The court reasoned,
therefore, that the statute should not be extended to include them, and the
court deferred to the legislature to make such a determination.168
This is yet another example of how Massachusetts has changed the
rules by allowing same-sex couples to marry without the clear support of
the legislature––had this case been heard in Massachusetts in 2005, the
couple would have been able to marry, thus Pyles’ stepparent status might
have been more viable. Alternatively, the court could find that she was a
presumed parent of the children, had they been born during the marriage.
In 2002, the American Law Institute (ALI) adopted Principles of the
Law of Family Dissolution: Analysis and Recommendations (Principles),169
which seeks to provide a uniform solution for many of the common
problems arising out of family dissolution. In particular, this resource seeks
to provide equitable solutions for issues arising out of the dissolution of
non-traditional families, when common family law principles may not
164. No. 97APD01-137, 1997 Ohio App. LEXIS 3627 (Ohio Ct. App. Aug. 12, 1997).
Marla Liston and Tamara Pyles lived together for sixteen years and eventually
decided to have a child, which would be the biological child of Pyles. Id. at *1. The
women raised the child jointly for three years, after which time they separated. Id. at
*2. Liston was the primary caregiver for the child for the final year of the
relationship. Id. Liston alleged that her relationship with the child could be analogized
to that of a stepparent, but the court distinguished this relationship, stating that
through the marriage of a stepfather to the biological mother the parents formed a new
family unit that was statutorily recognized by the court, whereas the relationship
between Liston and Pyles is not recognized by the courts. Id. at *14. For this reason,
the Ohio court refused to apply the in loco parentis theory to the relationship at issue
in this case. Id. at *17-20.
165. Id. at *8.
166. See id. at *8-9.
167. See id. at *10.
168. See id. at *12.
169. See generally AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY
DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (2002) [hereinafter PRINCIPLES].
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necessarily apply.170 It is particularly relevant to this Note that Principles
makes specific mention of the growing prominence that non-traditional
families have in society today. Principles provides that “a parent is either a
legal parent, a parent by estoppel, or a de facto parent.”171 In its discussion
of individuals who may be co-parents, Principles notes that:
An individual may also be a parent by estoppel on the basis of a
co-parenting agreement with the child’s legal parent or parents,
when that individual has lived with the child since the child was
born, holding himself or herself out as the child’s parent and
accepting the responsibilities thereof.…
This … contemplates the situation of two cohabiting adults
who undertake to raise a child together, with equal rights and
172
responsibilities as parents.
Because Principles was written to be used as a resource in all
jurisdictions, it notes that the best way to contract to jointly raise a child is
through adoption, but it further acknowledges that some jurisdictions do
not allow same-sex couples to adopt jointly, and that second-parent
adoption is not available in all jurisdictions.173
As an equitable consideration, Principles requires that parenting
agreements include both rights and obligations:
An individual may not be a parent by estoppel … if the
agreement provides for less than a full assumption of the
responsibilities as a parent. An agreement for visitation only, or
one that specifically excludes obligations for financial support …
does not serve as the basis for recognition as a parent by
174
estoppel.
As an illustration of a parent by estoppel, Principles provides the
following example:
After living together in a committed relationship for four years,
Marlene and Stephanie decided to raise a child together. They
agreed that Marlene would attempt to conceive a child through
artificial insemination and that she and Stephanie would be
equally involved and responsible for any child so conceived. In
accordance with their plan, Marlene bore a child, Matt, and for
the first five years of Matt’s life, Marlene and Stephanie equally
170. Id.
171. Id. § 2.03(1).
172. Id. § 2.03.
173. Id.; see also supra Part I.B.
174. PRINCIPLES, supra note 169, § 2.03.
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shared caretaking and decisionmaking responsibilities. Both
Marlene and Stephanie were listed on Matt’s medical and pre-
school records as “parent” and each acknowledged the other as
Matt’s co-parent. Stephanie did not adopt Matt because
applicable state law would not allow it without the termination of
Marlene’s rights.
Marlene and Stephanie are now separating, and Marlene
objects to Stephanie having any contact with, or responsibility
for, Matt. Stephanie files an action seeking an allocation of
custodial responsibility.
Stephanie is a parent by estoppel … if the court determines
that such a determination would be in Matt’s best interests. She
175
also satisfies the requirements of a de facto parent.
D. De Facto Parenthood
During the last decade, several state supreme courts have held that a
same-sex, non-biological, non-legal parent is entitled to visitation, custody,
and in some cases, is also obligated to pay child support, because he or she
is a de facto parent.176 Courts have been more willing to grant visitation
rights to individuals who are able to successfully plead that they are de
facto parents, as opposed to merely standing in loco parentis.177 “A de facto
parent is ‘that person who, on a day-to-day basis, assumes the role of
parent, seeking to fulfill both the child’s physical needs and his
psychological need for affection and care.’”178
As the definition would indicate, in order to determine whether an
individual is a de facto parent, a judge will look at the “functional
relationship between an adult and child and evaluate the existence of
psychological parenthood to determine whether an individual may assert
rights on behalf of a child.”179 In determining the existence of such a
relationship, judges will consider (1) whether the relationship was at least
six years in duration, (2) whether the relationship involved “reciprocal
conduct between the child and the de facto parent which the child manifests
expressly or impliedly” or whether the child is of “sufficient age and
understanding” to comprehend the “meaning of the parental relationship,”
and (3) whether there would be a “detriment to the child if left solely with
175. Id.
176. Ryiah Lilith, Caring for the Ten Percent’s 2.4: Lesbian and Gay Parents’ Access to
Parental Benefits, 16 WIS. WOMEN’S L. J. 125, 133 (2001).
177. See Miller, supra note 96, at 14.
178. Sella, supra note 134, at 154 (quoting In re B.G., 523 P.2d 244, 253 n.18 (Cal.
1974)).
179. Id. at 154-55.
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the custodial parent.”180
These elements, while beneficial in some circumstances, considerably
restrict the ability of non-biological parents to assert their parental rights in
some situations.181 A non-biological parent seeking to assert parental rights
in the early days, weeks and years of a child’s life, for example, would not
be able to meet the six-year requirement, and it is often difficult to prove
that a child will suffer a detriment by being raised solely by the biological
parent.182
Principles defines a de facto parent as:
an individual other than a legal parent or a parent by estoppel
who, for a significant period of time not less than two years,
(i) lived with the child and,
(ii) for reasons primarily other than financial
compensation, and with the agreement of a legal parent to
form a parent-child relationship, or as a result of a complete
failure or inability of any legal parent to perform caretaking
functions,
(A) regularly performed a majority of the caretaking
functions for the child, or
(B) regularly performed a share of caretaking
functions at least as great as that of the parent with whom
183
the child primarily lived.
This definition requires only two years of residency with the child,184
presumably making it easier for parents to satisfy this requirement.
Principles notes, however, that “[t]he requirements for becoming a de facto
parent are strict, to avoid unnecessary and inappropriate intrusion into the
relationships between legal parents and their children.”185 In E.N.O. the
SJC defined a de facto parent as:
[O]ne 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
186
caretaking functions at least as great as the legal parent.
Using this definition, the SJC awarded visitation to the non-biological
180. Id. at 155.
181. See infra Part V.
182. Sella, supra note 134, at 155.
183. PRINCIPLES, supra note 169, § 2.03(1)(c).
184. Id.
185. Id. § 2.03 cmt. c.
186. E.N.O. v. L.M.M., 711 N.E.2d 886, 896 (Mass. 1999).
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parent, who, upon the parties’ separation, had been denied visitation with
the parties’ child.187 E.N.O. was a landmark opinion for Massachusetts, as it
recognized that some people are de facto parents despite the fact that they
are unrelated to the child by biology, adoption, or marriage.188
In applying these various definitions of parenthood, state courts have
come to varied conclusions in these cases. The Rhode Island Supreme
Court, for example, found that a woman, whose former same-sex partner
gave birth to a child while the couple was living together as domestic
partners, was a de facto parent; as such, she should be granted visitation
and could also be obligated to pay child support.189
The fact patterns in the majority of these same-sex custody, visitation
and support cases are generally the same as in the Rhode Island case, with a
few minor variations.190 In most of these cases, the couple decided jointly
to become parents, one partner was artificially inseminated, and after some
period of time, the relationship dissolved, leaving the couple to face the
standard issues that heterosexual couples face when they go through
divorce; except for the obvious lack of definitive laws governing the
dispute.191 Once the issues are brought to trial, a common argument by the
non-biological, non-legal parent is that she is a de facto parent.
Ultimately, the states vary in their definition of de facto parenthood,
just as they vary in nearly all other facets of family dissolution when it
involves non-traditional families. Adopting a uniform standard, like that
proposed by Principles, would provide a consistent remedial basis for non-
traditional families regardless of where they live.192
One of the distinguishing factors of de facto parenthood––and one
that is not a component of any of the other theories of non-traditional
parent status––is the need for that person to have a psychological
connection to the child.193 For example, an individual standing in loco
parentis need not be considered a psychological parent, and the doctrine is
“satisfied when an individual ‘assumes the obligations incident to the
parental relationship.’”194 Furthermore, de facto parents differ from
equitable parents in that equitable parenthood is based on the theory of
187. Id. at 893.
188. Bonauto et al., supra note 71, § 11.1.
189. Rubano v. DiCenzo, 759 A.2d 959, 976 (R.I. 2000) (“[T]he fact that Rubano is not a
biological parent does not necessarily relieve her of a potential legal obligation to
support the child.”).
190. Lilith, supra note 177, at 133.
191. Id.
192. PRINCIPLES, supra note 169, § 2.03.
193. Sella, supra note 134, at 156.
194. Id. (citation omitted).
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equitable estoppel and equitable adoption, while de facto parenthood is
based on the definition of a psychological parent.195
“A de facto parent is ‘that person who, on a day-to-day basis, assumes
the role of parent, seeking to fulfill both the child’s physical needs and his
psychological need for affection and care.’”196 Despite this definition and
the popularity of this argument in custody and visitation cases, none of the
cases making child support determinations have turned on this theory. The
closest that the courts have come to using de facto parenthood to support
obligating a non-biological parent to pay child support determination
against a non-biological parent was Rubano v. DiCenzo,197 in which the
Rhode Island Supreme Court said “the fact that Rubano is not a biological
parent does not necessarily relieve her of a potential legal obligation to
support the child.”198
E. Intended Parenthood
With the evolution of nontraditional methods of conception and
reproduction, a new theory of parenthood has also evolved, which takes
into account the deliberateness of this type of conception––intended
parenthood.199 Marjorie Shultz, a professor of law at the University of
California Berkeley, notes that because traditional conception may occur
quickly and without much deliberation, intent to become a parent, as
evidenced by voluntary use of reproductive technologies, ought to
presumptively determine legal parenthood.200 Professor Shultz argues that
in instances where children are born through the use of artificial or assisted
reproduction, which requires such a great degree of preparation and
determination, an intent-based policy for determining parenthood ought to
control.201 “The purpose of those who invoke new reproductive procedures
is clear, specifically targeted [sic] and unambiguous. Procreation does not
occur by accident or as a byproduct; purposeful effort is directed to
achievement of a specific outcome.”202
The term “intended parent” has typically been used to refer to parents
195. Delaney, supra note 158, at 202.
196. Sella, supra note 134, at 154. This definition is different from that of in loco parentis
as one need not have established a psychological bond with the child to be found to
stand in loco parentis. Id. at 156.
197. 759 A.2d 959 (R.I. 2000).
198. Id. at 976.
199. Sella, supra note 134, at 145.
200. Marjorie Maguire Shultz, Reproductive Technology and Intent-Based Parenthood: An
Opportunity for Gender Neutrality, 1990 WIS. L. REV. 297, 323 (1990).
201. Id. at 324-25; see also infra Parts IV.B., V.
202. Shultz, supra note 200, at 309-10.
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who enlist the assistance of a surrogate to bear their child.203 Assisted
reproductive technologies provide many options for individuals to become
parents beyond surrogacy,204 however, and the principle of intended
parenthood ought to apply to those individuals who consent to their
partner’s insemination, just as it applies to a married couple that enlists the
services of a surrogate mother.
This theory is particularly important when a parent’s involvement
dwindles or is non-existent after conception. We have long sought to hold
“dead beat dads” responsible for the children they create, and there is no
exception to child support obligations for children born as a result of a one-
night-stand, thus, this Note suggests that a same-sex parent who
participates to the point of conception in her partner’s pregnancy should be
considered a parent for the purposes of child support.
IV. T.F. V. B.L.: A CASE OF FIRST IMPRESSION IN MASSACHUSETTS
A. Facts
On August 25, 2004 the SJC decided T.F. in favor of the non-
biological mother, B.L., finding that despite evidence that the parties
entered into an implied contract to undertake the responsibilities of
parenthood, such a contract was unenforceable because parenthood by
contract is against public policy and therefore is not the law in
Massachusetts.205 T.F. differs from most of the other cases previously
discussed in that the action was initiated by the biological parent against
the non-biological parent for the sole purpose of obtaining a child support
determination.206 In most of the other cases, the non-biological parent
sought some sort of parental right (custody or visitation) and the biological
203. See Tim R. Schlesinger, Assisted Human Reproduction: Unsolved Issues in
Parentage, Child Custody and Support, 61 J. MO. BAR 22, 23 (2005).
204. Many same-sex couples turn to assisted reproductive technologies to produce children
who possess the genes of at least one of the partners. See Catherine DeLair, Ethical,
Moral, Economic and Legal Barriers to Assisted Reproductive Technologies
Employed by Gay Men and Lesbian Women, 4 DEPAUL J. HEALTH CARE L. 147, 148
(2000); see also Lilith, supra note 176, at 131. Artificial insemination by donor, is
just one such technology, but there is a vast amount of legislation in effect governing
its use. See DeLair, supra, at 163-64 (citing ARK. CODE § 9-10-201-202 (West 1991);
CONN. GEN. STAT. ANN. §§ 45a-771 to 45a-779 (West 1993); GA. CODE ANN. §§ 19-7-
21, 43-34-42 (1991); IDAHO CODE §§ 39-5401 to 5408 (Michie 1998); OR. REV. STAT.
§§ 109.239-47, 677.360, 677.365 (1990)).
205. T.F. v. B.L., 813 N.E.2d 1244,1249-50 (Mass. 2004).
206. Id. at 1246.
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parent cross-claimed for child support.207 Additionally, the facts of T.F.
paint a dramatically different picture in that the parties’ relationship
dissolved after the child was conceived but before his birth, eliminating the
possibility that a relationship could develop between B.L. and the child
sufficient to consider B.L. a de facto parent, or to find that she stood in loco
parentis.208 For these reasons, the plaintiff’s case appeared weak from the
start, but the defendant’s actions leading up to the pregnancy––supporting
and encouraging the plaintiff to undergo artificial insemination and then
holding the child out as her own to friends and family after his birth––
tipped the scale back in favor of a finding that she was a parent to the child,
who would not have been born absent her consent.209 As a result, the
plaintiff argued, B.L. should be responsible for paying child support.210
T.F. and B.L.211 met in 1995, and after a year of friendship, began
dating seriously in the summer of 1996.212 The parties participated in a
commitment ceremony on May 30, 1999, at which time they had lived
together for over two years.213 The parties’ relationship progressed
naturally––they discussed their fears and dreams, pooled their money, and
named each other on their life insurance policies and retirement plans.214
T.F. communicated to B.L. that she had always wanted to be a
mother.215 In fact, her previous relationship ended because her former
partner did not want to have children, and T.F. did not want to become a
mother alone.216 Beginning about six months into the parties’ relationship
they began having discussions about children and these discussions came to
be a common occurrence.217 For a long time, B.L. did not want to have
children because of her traumatic childhood, plagued with physical and
emotional abuse, that she and her siblings endured.218 After years of
fruitless discussion, in the summer of 1999, B.L. telephoned T.F. at work
one day and told her that she had changed her mind––she did want to have
207. See generally id.
208. Id. at 1246.
209. See generally id.
210. Id. at 1246.
211. The court impounded the parties’ names in order to protect their identities.
212. T.F., 813 N.E.2d at 1246-47.
213. Id. at 1247.
214. Id.
215. Id.
216. Brief of Plaintiff-Appellant at 4, T.F. v. B.L., 813 N.E.2d 1244 (Mass. 2004) (No.
SJC-9104) [hereinafter Brief of Plaintiff-Appellant].
217. Id. at 4-5.
218. T.F., 813 N.E.2d at 1247; see also Brief of B.L. and Supplemental Appendix at 4-5,
T.F. v. B.L., 813 N.E.2d 1244 (Mass. 2004) (No. SJC-9104).
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children after all.219
As a result of B.L.’s sudden change of heart, the parties began serious
talks about starting a family.220 The night of B.L.’s phone call the parties
had a long, detailed discussion about potential sperm donors, the division
of household labor once they had the child, the need for a larger house,
school districts, and the risks of pregnancy.221 T.F. subsequently made an
appointment with her doctor to discuss pregnancy.222 The doctor referred
T.F. to another doctor who could perform the artificial insemination.223 At a
meeting with the new doctor the parties discovered that T.F., whom the
parties decided would bear the child, had a medical condition that would
make pregnancy and delivery difficult.224 As a result of this discovery, the
parties began to discuss other options, including adoption, foster children
and the possibility of B.L. being the birth mother, but for various reasons
settled on their original plan to have T.F. be inseminated.225
Thereafter the parties met with a social worker at the doctor’s office,
and discussed anonymous sperm donors as an alternative to using B.L.’s
brother’s sperm, which the parties had originally considered.226 Ultimately,
the parties determined that “it would … ‘be too weird’ to raise” B.L.’s
brother’s child as their own so they decided to proceed by finding an
anonymous sperm donor.227
On August 6, 1999, with two witnesses, the parties signed a Consent
Form for Donor Insemination at the doctor’s office after forty-five minutes
of discussion with a nurse.228 While T.F. continued seeing the doctor and
began taking hormone pills to prepare her body for the pregnancy, the
parties searched for sperm donors over the Internet, sometimes together,
and other times separately, but both parties participated in the process.229
The women agreed that they wanted a donor who was Spanish and tall,
with a skin tone like that of B.L., and they selected a list of six donors
about whom they requested more information.230 The parties decided to
219. T.F., 813 N.E.2d at 1247.
220. Id.
221. Id.
222. Id.
223. Id.
224. Id. A subsequent test indicated that T.F. would be able to carry the child but that she
would be forced to deliver by Caesarian section. Id.
225. T.F., 813 N.E.2d at 1247.
226. Id. at 1259.
227. Id.
228. Id. at 1247.
229. Brief of Plaintiff-Appellant, supra note 216, at 7.
230. Id.
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review the lists and information separately and then compare their
results.231 When they compared their choices, both had selected the same
donor as their first choice.232 The trial court declined to find merit in B.L.’s
testimony that she read through the donor descriptions “because she got
tired of the arguments and didn’t want to take [the plaintiff’s] dream
away.”233
The first insemination, which occurred in October 1999, at the
doctor’s office, with both parties present, was unsuccessful.234 T.F. testified
that upon hearing that the insemination had been unsuccessful, B.L. put
down and shook her head in disbelief.235 The second insemination, which
took place in December 1999, was successful and approximately one week
after Christmas that year the parties learned that T.F. was pregnant.236
In February and March 2000 the parties’ relationship began to
deteriorate and B.L. began spending more time with another female friend
outside of the parties’ home.237 In April 2000 B.L. broke up with the
pregnant T.F. and in May moved out of their home.238 During the break up,
B.L. tearfully expressed her concern that she would be the “separated
parent,” reiterated her desire to adopt the child, and promised financial
support because “she never wanted to do what her own father did in
abandoning the child and refusing to pay child support.”239
On July 1, 2000, T.F. went into premature labor, nine weeks early,
while vacationing with her family in New Hampshire.240 The child was in
serious condition after his birth and was rushed away before T.F. could
even see his face.241 T.F.’s sister called B.L. from the hospital and B.L.
arrived an hour later, in time to see the child with T.F. for the first time. 242
B.L. gave her son his first bottle at the hospital and the hospital gave her a
bracelet identifying her as the child’s parent.243 Because of the child’s
serious condition, B.L. asked T.F. to call her during the night if there were
231. Id.
232. Id.
233. T.F., 813 N.E.2d at 1247 (internal quotations omitted) (alteration in original).
234. Id.; see also Brief of Plaintiff-Appellant, supra note 216, at 8.
235. T.F., 813 N.E.2d at 1259.
236. Id. at 1247, 1259.
237. Brief of Plaintiff-Appellant, supra note 216, at 10.
238. Id.
239. Id.; see also T.F., 813 N.E.2d at 1247-48.
240. T.F., 813 N.E.2d at 1248.
241. Brief of Plaintiff-Appellant, supra note 216, at 10-11.
242. Id. at 11.
243. Id.
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any medical decisions that needed to be made.244
The parties chose the child’s name jointly and they discussed finances
again during the time the child spent at the hospital.245 B.L. gave T.F. $800
at the hospital for initial expenses.246 In the coming weeks B.L. sent
pictures of herself and the child to friends and family accompanied with the
message: “I hope you all enjoy the pics of my wonderful, beautiful boy.”247
B.L. continued to visit her son while he was in intensive care for several
weeks, and the parties continued to discuss their parenting plans, including
the possibility of B.L. watching the child for half-days or getting a new job
that would allow her to spend more time with her son.248
As late as August of 2000, B.L. continued to express her desire to
support the child, but on October 27, 2000, the parties argued outside T.F.’s
office for an hour and a half about child support because the expenses had
increased due to the child’s medical problems.249 B.L. admitted at that time
that she was not paying child support because she was angry at T.F., and on
October 31, 2000, T.F. received a letter from B.L. indicating her desire to
terminate her relationship with both T.F. and their son.250
In January of 2001, T.F. filed a complaint in the Probate and Family
Court seeking child support from B.L.251 Arguing that B.L. was estopped
from denying responsibility for the child and that she had breached an oral
contract to parent the child in partnership with her, T.F. sought relief under
Massachusetts’ child support guidelines.252 The Probate and Family Court
judge found that:
there was no evidence of an explicit oral promise by the
defendant, except to “explore the possibility of having a child.”
However … this promise, because of the defendant’s subsequent
behavior and failure to “stop or slow down” the plaintiff’s
pregnancy, “grew naturally and actively into the creation of a
child,” and thus the creation of a binding contract between the
253
parties.
The lower court judge further concluded that B.L. had breached the
244. Id.
245. T.F., 813 N.E.2d at 1248.
246. Id.
247. Id.
248. Brief of Plaintiff-Appellant, supra note 216, at 12.
249. Id.; see also T.F., 813 N.E.2d at 1248.
250. T.F., 813 N.E.2d at 1248.
251. Id. at 1246.
252. Id. (citing MASS. GEN. LAWS ch. 119, § 28(d) (2000)).
253. Id. at 1248.
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contract “by refusing to perform the obligations of parenthood (i.e., to
provide child support).”254 The plaintiff argued that the Probate and Family
Court should impose a child support obligation on B.L. based on two
arguments: (1) “that the defendant entered into an enforceable implied
contract … to coparent a child, or at least that she impliedly promised to
support the child, and is now estopped from denying that support”; and (2)
“that an order of child support … would be consistent with the oft-
expressed legislative policies as manifested in related statutes, and that the
‘broad and flexible’ equity powers of the Probate Court can and should be
invoked to implement said polices [sic].”255
The lower court judge declined to issue an order of support, however,
and instead reported the case to the Massachusetts Appeals Court “for a
determination [of] whether parenthood by contract is the law of
Massachusetts.”256 The SJC granted T.F.’s application for direct appellate
review and heard arguments in the case on March 4, 2004.257
B. Parenthood by Contract
“In the absence of an express agreement, an implied contract may be
inferred from (1) the conduct of the parties and (2) the relationship of the
parties.”258 In order for a court to find that an implied contract exists—and
in this case there is no evidence of an actual contract—there must be “proof
that there was a benefit to the defendant, that the plaintiff expected the
defendant to pay for that benefit, and that the defendant expected, or a
reasonable person should have expected, that he or she would have to pay
for that benefit.”259 Citing B.L.’s actions and inactions following her
critical 1999 phone call to T.F., in particular the implication that B.L.
“intentionally manifested an outward desire to have a child in order to
maintain her relationship with [T.F.],” the SJC found that “the evidence
warranted the [lower court] judge’s finding that there was an agreement by
[B.L.] to undertake the responsibilities of a parent in consideration of the
plaintiff’s conceiving and bearing a child.… A finding of an implied
contract based on these facts, while not compelled, was certainly
permissible.”260
254. Id.
255. Id.
256. T.F., 813 N.E.2d at 1246 (internal quotations omitted).
257. Id. at 1244, 1246.
258. Id. at 1249.
259. Id. (footnote omitted). The court declined to address the issue of consideration, and
“assume[d], without deciding, that there was consideration for this contract.” Id. at
1249 n.4.
260. Id. at 1249 (footnote omitted).
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Despite this finding, however, the SJC was not compelled to enforce
such a contract; in fact, the court ultimately found that this contract violated
or conflicted with public policy and, therefore, “we treat it as void and will
not enforce it.”261 In reaching this conclusion, the majority relied in part on
its previous decision in A.Z. v. B.Z.,262 in which the court held that:
“prior agreements to enter into familial relationships (marriage
or parenthood) should not be enforced against individuals who
subsequently reconsider their decisions.”
… The decision to become, or not to become, a parent is a
personal right of “such delicate and intimate character that direct
enforcement … by any process of the court should never be
263
attempted.”
Thus, the SJC concluded that “[p]arenthood by contract is not the law
in Massachusetts, and, to the extent the plaintiff and the defendant entered
into an agreement, express or implied, to coparent a child, that agreement is
unenforceable.”264
C. The Equity Power of the Probate and Family Court
T.F. also argued that the SJC should allow the Probate and Family
Court to invoke its equity powers and impose a child support obligation on
B.L.265 The SJC found, however, that the purpose of the Probate and
Family Court’s equity power is to provide it a means of enforcing existing
obligations; “not … to empower the court to create new obligations.”266
Because the duty to provide child support is a statutory obligation, the SJC
held that only those individuals identified by the statutes as “parents” (e.g.,
a person who is adjudicated the father of a child born out of wedlock or a
person who adopts a child) should be liable to support their children.267 In
addition, the court relied on Massachusetts General Laws chapter 46
section 4B, which provides that “[a]ny child born to a married woman as a
261. Id. at 1250.
262. 725 N.E.2d 1051 (Mass. 2000) (holding unenforceable a consent form, signed by both
a married couple and a clinic, that gave custody of preembryos stored at the clinic to
the wife upon divorce).
263. T.F., 813 N.E.2d at 1251 (quoting A.Z., 725 N.E.2d at 1059; Kenyon v. Chicopee, 70
N.E.2d 241 (1946)).
264. Id. at 1251. The court went on to conclude that, in this case, it was impossible to sever
the promise to pay child support from the rest of the unenforceable contract; as a
result, it could not impose a support obligation on B.L. based on the implied, but
unenforceable, contract that it found existed here. Id. at 1251-52.
265. Id. at 1252.
266. Id.
267. Id. at 1252-53.
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result of artificial insemination with the consent of her husband, shall be
considered the legitimate child of the mother and such husband.”268 The
majority wrote that “the Legislature has not addressed the situation, present
in this case, where a nonmarital cohabitant consents to such a procedure.
This absence of legislative action is not a nod in our direction.”269 The
majority’s determination not to create a new obligation for individuals like
B.L., who encourage their partners to get pregnant and then leave both the
relationship and the child without fulfilling their obligations, was a problem
before same-sex marriage became permissible in Massachusetts.270 It is
even more of a problem now, however, as it creates an even greater divide
between heterosexual and homosexual parents.271
Because of the nature of B.L.’s relationship with her child and the
timing of her separation with T.F., none of the theories used by other courts
to impose support obligations on same-sex non-biological parents can be
applied here. B.L. did not become a de facto parent because she did not
have a long-term relationship with the child.272 B.L. never stood in loco
parentis because she never had the opportunity to live with or care for the
child, as she and T.F. separated before the child’s birth. 273
D. The Dissent
While the dissent agreed that parenthood by contract is not the law in
Massachusetts because of the troubling ramifications that a different
outcome would produce, the dissent still sought to hold B.L. to her promise
to support T.F.’s biological child.274 As its primary reasoning for holding
B.L. liable for support, the dissent quoted from the Probate and Family
Court judge’s findings:
The decision to create this child was even more conscious and
deliberate than the decision that is made by some couples who
are both biological parents and conceive a child by direct sexual
intercourse. That was the agreement: to create a child. First the
parties explored the ways to accomplish that agreement and then
they went forward together to accomplish it.… A person cannot
participate, in the way the defendant [B.L.] did, in bringing a
268. MASS. GEN. LAWS ch. 46, § 4B (2002).
269. T.F., 813 N.E.2d at 1253.
270. See supra Part IV.
271. See supra Part IV.
272. T.F., 813 N.E.2d at 1253.
273. Brief of Plaintiff-Appellant, supra note 216, at 10.
274. T.F., 813 N.E.2d at 1254-58 (Greaney, J., concurring in part, dissenting in part).
Interestingly, Chief Justice Marshall, who authored Goodridge v. Dep’t of Pub.
Health, 798 N.E.2d 941 (Mass. 2003), dissented in T.F.
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child into the world, and then walk away from a support
275
obligation.
Moreover, the dissent argued that the Legislature’s consistent desire
to treat all children equally “regardless of the accidents of their birth”
indicates a general legislative intent to impose a child support obligation on
any individual who participates to the point of conception in his or her
partner’s pregnancy.276
The dissent further cited the American Law Institute’s (ALI)
recommendations for child support, which state that an obligation should
be imposed “on a ‘person who may be not the child’s parent under [S]tate
law, but whose prior course of affirmative conduct equitably estops that
person from denying a parental support obligation to the child.’”277 The
recommendations explicitly provide that a support obligation should be
imposed “when a child is conceived ‘pursuant to an agreement between the
person [to be charged] and the child’s parent that they would share
responsibility for raising the child and each would be a parent to the
child.’”278 The ALI recommendations recognize the inevitability of a
situation like that in T.F. and provide for the imposition of a child support
obligation on a woman situated as B.L.––she is not a biological parent, but
she made an agreement with the child’s parent that she would support the
child resulting from the artificial insemination of the biological parent, to
which she also consented.279
Thus, the dissent argued, correctly, that regardless of whether
parenthood by contract is the law in Massachusetts, which the dissent
agrees it should not be, in this situation, where B.L. participated to the
detriment of both T.F. and her child in T.F.’s becoming pregnant, she
should be held responsible for her actions, and estopped from denying child
support.
V. THE EFFECT OF T.F. V. B.L. IN LIGHT OF GOODRIDGE
One reading of T.F. in light of the Goodridge decision is that the SJC
wishes to encourage same-sex couples to utilize the institution of marriage,
now available to them, to legalize their relationships. By doing so, these
275. Id. at 1255 (Greaney, J., concurring in part, dissenting in part).
276. Id. at 1255-56 (Greaney, J., concurring in part, dissenting in part) (quoting Woodward
v. Comm’r of Soc. Sec., 760 N.E.2d 257 (Mass. 2002)).
277. Id. at 1257 (Greaney, J., concurring in part, dissenting in part) (alteration in original)
(quoting PRINCIPLES, supra note 169, § 3.03 & cmt. c).
278. Id. at 1257-58 (Greaney, J., concurring in part, dissenting in part) (alteration in
original) (quoting PRINCIPLES, supra note 169, § 3.03(1)(c)).
279. Id. (Greaney, J., concurring in part, dissenting in part).
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couples will fall under the clear statutory boundaries governing marriage in
the state and the lower courts will have a strict regimen to follow when
faced with custody and support issues as these same-sex couples begin to
divorce.280 While this interpretation is sufficient for the future children of
married same-sex couples, it leaves in limbo the families created before
marriage was an option.281
During the time that T.F. and B.L. were involved with each other, it
was illegal for them to marry, even if they had desired to do so. Based on
the evidence presented to the Probate and Family Court––that the couple
participated in a civil commitment ceremony, and in many other ways
acted like a married couple––one can only speculate as to whether they
would have married if given the option.282 Beginning on May 17, 2004,
hundreds of same-sex couples were granted marriage licenses in
Massachusetts.283 As a result, family structures previously unrecognized by
the state were suddenly validated, and couples whose parental rights and
obligations were previously unenforceable, suddenly became enforceable.
Had this option been available to T.F. and B.L., T.F. could have made
many other arguments in support of her petition for child support. For
example, Massachusetts General Laws chapter 209C section 6 provides in
part that “a man is presumed to be the father of a child … if: (1) he is or has
been married to the mother and the child was born during the marriage, or
within three hundred days after the marriage was terminated....”284
Assuming arguendo that the couple had married, T.F. could have argued in
the divorce hearing that the child born to her just months after the couple’s
separation should be presumed to be B.L.’s child, based on the presumption
of paternity statute. While the statute expressly says “man” as the spouse of
a woman who gives birth to a child, the argument can certainly be made
that a woman in the same position––who is legally married to a woman
who gives birth to a child during the prescribed time period––should also
be considered a parent to the child. This issue has not yet been raised in the
Massachusetts courts, but as time goes on and more same-sex marriages
begin to dissolve, such issues will undoubtedly begin to arise.
Possibly more applicable is Massachusetts General Laws chapter 46
section 4B, which states that “[a]ny child born to a married woman as a
result of artificial insemination with the consent of her husband, shall be
280. See Recent Case, supra note 12, at 1042.
281. See id.
282. See supra Part V.A.
283. Yvonne Abraham & Rick Klein, Free to Marry: Historic Date Arrives for Same-Sex
Couples in Massachusetts, BOSTON GLOBE, May 17, 2004, at A1.
284. MASS. GEN. LAWS ch. 209C, § 6 (2002).
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considered the legitimate child of the mother and such husband.”285
Recognizing of course that there may or may not be a “husband” if the
married couple consists of two women, as in the case of T.F., the argument
could be made here as well that a spouse of any sex, who consents to the
other spouse’s artificial insemination, should be considered a parent.
We must also consider the specific intent of such parents. Using the
facts of T.F., if the case was heard in 2005 instead of 2004, one would be
forced to speculate as to whether the parties lacked the intent to become a
family based on their failure to marry, now that the right to do so has been
granted by the SJC. Speculation as to parties’ intent has always been a
means that courts have hesitated to employ when making findings of fact.
While it is thus risky to suggest that the courts make a party’s intent to
become a parent such a critical factor in same-sex child support
determinations, it seems necessary, at least until the Massachusetts
Legislature acts to clarify the court’s role in this time of abundant grey
area.
CONCLUSION
To use the “categories of same-sex couples” referenced above,
whether a same-sex couple chooses to marry bears considerably on their
intent to remain together and to become a legally-recognized family unit.
Certainly such a determination is difficult to make when the option to
marry is unavailable, as was the case with T.F. and B.L., who took all steps
possible at the time of their relationship to solidify their commitment to one
another.286 But, now that the option is available, courts have one more
factor to consider when faced with a situation like that in T.F.––why didn’t
the couple get married? Did they lack the intent to stay together? Did the
non-biological parent lack the intent to be a parent at all?
Possibly a more disturbing scenario is the one that may arise should
the Legislature succeed in amending the Massachusetts Constitution to
define marriage as an act between a man and a woman. In that instance,
what will become of the licenses issued between May 17, 2004 and that
future date? If they are presumed to be valid, then couples that availed
themselves of the opportunity to marry will have better legal grounds than
those who did not, when it comes to adjudicating their parental rights and
child support obligations. At the same time, however, some parents will be
able to argue that their marriage was invalid despite the granting of a
marriage license, and thus may try to avoid child support liability anyway.
Ultimately, the dichotomy between the Goodridge and T.F. decisions
285. Id. ch. 46, § 4B.
286. See supra Part V.A.
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leaves the waters of Massachusetts family law murky at best, and it will be
some time before the full effect of these decisions can be seen and
evaluated. For now, though, same-sex couples seeking to bind one another
in child-related issues should either follow the law of contracts and write it
down, or avail themselves of the one legal avenue generally available—
formal adoption.
Sara R. David