Lesbian Co-Mom Prevails 2nd Time at Bat

The lesbian former partner of an adoptive mother, turned back two years ago by the Delaware Supreme Court in her effort to gain joint custody of the child the couple had been raising together, has won a victory from the same court on the same issue, likely putting to rest a contentious, long-running dispute between the two parents.a

On March 14, the high court affirmed a ruling by the New Castle County Family Court awarding joint legal custody of the child to Carol M. Guest. She and Lynn M. Smith, who shared a home between 1995 and 2004, jointly raised a child Smith had adopted in Kazakhstan in 2003. (Both women are identified in the court ruling by pseudonyms, in line with the discretion traditionally used in family court matters.)

Delaware State Supreme Court accepts de facto parent claim it rejected in 2009

The reversal in Guest’s fortunes came as the result of legislative action undertaken in the wake of her 2009 loss before the State Supreme Court.

Both women traveled to Kazakhstan to adopt the child, but since that nation does not allow joint adoption by same-sex couples, Smith was the sole adoptive parent. According to the couple, they were advised that Guest would have to care for the child for at least a year before the Family Court would approve an adoption, and they ended up dropping the matter. But, Guest did act as a parent toward the child until the couple broke up in May 2004, after which Smith quickly cut off her ex’s contact with the child.

Guest responded with a lawsuit seeking joint custody as a de facto parent. Though the Family Court granted her petition, the Delaware Supreme Court reversed that ruling in a February 2009 decision. The high court noted that state law identified only birth parents or adoptive parents, and concluded that the omission of de facto parents by the Legislature was not inadvertent. Media coverage of the decision caught the Legislature’s attention, and it moved promptly to amend the statute governing parenting. The amendment, which has “retroactive effect,” set out a fact-specific test for validating a prospective de facto parent’s claim.

Significantly, though court rulings generally bring finality to legal disputes –– providing clear guidelines upon which both parties can base their future actions –– the Legislature specifically provided that “no court decision based upon a finding that Delaware does not recognize de facto parent status” would have that effect.

So, in July 2009, Guest filed a new lawsuit seeking joint custody of the child. Smith argued that the statute was an unconstitutional violation of her rights as a legal parent, and, among other arguments, also made collateral estoppel and res judicata assertions related to the usual practice of court decisions bringing matters to a close. The Family Court rejected Smith’s arguments, and found that the statute was constitutional and that Guest qualified as a de facto parent. Consistent with an evaluation of the child’s best interests, that court awarded her joint custody. Smith appealed.

In its unanimous ruling, the Supreme Court decisively rejected both state and federal constitutional challenges to the statute. Smith based her state constitutional argument in part on the doctrine of separation of powers, arguing it was inappropriate for the Legislature to reverse a decision of the Supreme Court because it disagreed with the court interpretation of a statute. The court responded that the Legislature’s action was not a reversal of the court, but rather an appropriate reconsideration of the policy issues at stake. The Legislature’s action did not say the court had misconstrued the unamended statute.

More significantly, the court rejected Smith’s federal constitutional argument premised on a 2000 US Supreme Court ruling that struck down a state law that allowed a child’s paternal grandparents visitation over the objection of the child’s mother, who was their son’s widow. The Supreme Court found that the constitutional due process rights of a parent would be violated by ordering them to allow access to their child by a “third party” non-parent.

The Delaware Supreme Court rejected the applicability of that precedent, pointing out that Guest was not suing as a “third party” but rather as a “de facto parent,” a status the grandparents in the earlier case could not satisfy.

Smith also made an equal protection argument, contending the Legislature had inappropriately acted specifically to overturn her victory in the prior lawsuit. The court was unconvinced, since the Legislature’s rethinking of a basic policy issue applies to all claims of de facto parent status prospectively and retrospectively.

Because the court rejected Smith’s federal constitutional argument, it remains an option for Smith to seek review in the United States Supreme Court. Given the long odds against that court granting review, however, it is possible that this case has reached its conclusion.

Guest is represented by Richard Morse of the American Civil Union of Delaware and Michael Arrington of Parkowski, Guerke & Swayze. Smith was represented by Michael P. Kelly of McCarter & English. She reacted bitterly to the court’s decision, telling the News Journal of Wilmington, “Parental rights have been dismantled. It will take a few years for people to realize what it means, but parents don’t have the right to care and custody of their children any more. Another individual now has the right to sue you for rights to your children. It’s downright scary.”

 

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