Massachusetts Trial Court Recognizes Co-Parent Status for Non-Biological Lesbian Mom

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By Daniel Chavez, Christian Kummer, and Brett Figlewski. This article appears in the September edition of LGBT Bar Association of NY’s LGBT Law Notes.

On July 26, 2019, Judge Jennifer M. Ulwick of the Essex Probate and Family Court issued a favorable judgment in an important parentage case in which the LGBT Bar Association (LeGaL) and the law firm of Latham & Watkins represented a non-biological lesbian mother who had been denied access to her child by her former partner. The court declared the petitioner (who will be referred to as “Monica”) to be the legal parent of her son and granted her temporary legal and physical custody in order to help effectuate the child’s return from the Dominican Republic, where the biological mother’s family had brought him. The court held that, under Massachusetts law, Monica is the legal parent of her child.

In 2013, in the Dominican Republic, the petitioner’s friendship with the respondent, “Jane,” became romantic. Both women were legally married to men, but they were estranged from their husbands. Jane soon came to live with Monica in the United States. The two planned to divorce their husbands and marry each other. In 2014, Monica and Jane decided to start a family. A mutual male friend offered to be a donor, and they made clear their intention for the donor not to be involved in the child’s life in any capacity. Monica was the primary financial support for their household, and the two women decided that Jane would carry the child. Jane underwent nearly a year of alternative insemination attempts and eventually became pregnant. Monica and Jane shared the news with family, friends, and followers on social media. Monica was involved in the pregnancy in every way possible, including attending prenatal doctor’s appointments and buying necessary items for their expected child. When Jane gave birth in early 2015, Monica cut the umbilical cord. The two women chose a first name for their baby (who will be called “John”) and combined their surnames for his. John’s birth was announced on social media, and the family photos were captioned as “#TwoMoms” and “SomeFamiliesHaveTwoMoms.” While Jane stayed at home and raised the child, Monica continued to provide financially for her family and paid for food, medical bills, clothing, and rent. John called Monica “Mommy” and Jane “Mama.” However, the women did not marry each other.

In mid-2016, Jane was arrested and sentenced to three years in prison for selling illegal substances. Following her arrest and the subsequent breakdown in her relationship with Monica, Jane arranged first for her stepmother to take care of John and then for her aunt (who will be called “Sally”) to do so instead of Monica. Sally moved with the child to Massachusetts and cut off contact with Monica around the end of 2017. Additionally, Sally initiated a legal guardianship proceeding without Monica’s knowledge and was granted guardianship of John in the beginning of 2018. Monica sought legal help from LeGaL and, after meeting with LeGaL’s Legal Director, Brett Figlewski, obtained representation from LeGaL and pro bono counsel Latham & Watkins to bring a case in Massachusetts in August 2018 to establish her legal parentage. After nearly a year of court appearances, depositions, and uncontroverted testimony, Monica’s rights as a legal parent were finally recognized.

Judge Ulwick’s unpublished opinion based Monica’s ability to bring an action establishing legal parentage on the gender-neutral language of the state’s relevant statute, as well as the fact that Monica, “jointly with the [biological] mother, received the child into their home and openly held out the child as their child.” See Mass. Gen. Laws ch. 209C § 6(a)(4). Judge Ulwick stated conclusively that “the law is clear that ‘a person without a biological connection to a child may be that child’s presumed parent’” and relied on the seminal Massachusetts parentage case of Partanen v. Gallagher, 475 Mass. 632 (2016): “just as the children in Partanen were ‘born to’ both of their mothers, the Child was ‘born to’ [Monica] notwithstanding that she did not give birth to him and was not legally married to the biological mother…at the time of the child’s conception and birth.”

Having established Monica’s ability to bring the petition, the court also established that Monica had “jointly, with the mother, received the child into their home and openly held out the child as their child.” Mass. Gen. Laws ch. 209 C, § 6(a). The petitioner helped raise her child in every manner expected of a parent, was involved in significant decisions regarding her child’s life, and both she and the biological mother held themselves out to be the parents to their son, “both in formal and informal contexts” and both before and after the child’s birth. Relying on equity principles, the court stated that Monica is “entitled to an adjudication of parentage because she can demonstrate a ‘substantial parent-child relationship’ by clear and convincing evidence.”

In this decision, the Massachusetts court relied on favorable new precedent allowing non-biological/non-adoptive parents to have rights to their children, and challenging the notion that a biological or adoptive connection should be solely determinative of legal parentage. Thus, this decision adds to the growing body of law which recognizes the parents’ intent, the child-rearing responsibilities undertaken by them, and the fundamental bonds of affection which develop between any parent and child. Although John remains in the Dominican Republic to date, Monica now has formidable legal grounding to secure her son’s return, having been granted legal recognition as a parent and temporary custody of her child

Because of confidentiality concerns for the child and parents, we have redacted the title of the unpublished decision from this account. Readers interested in the details of the case can contact LeGaL Legal Director Brett Figlewski.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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