Child Support and the Non-Traditional Family

1. Child Support and the Non-Traditional Family

2. CHIEF JUSTICE ANGELA M. ORDOÑEZ PROBATE AND FAMILY COURT MASSACHUSETTS FIRST JUSTICE LINDA S. FIDNICK PROBATE AND FAMILY COURT HAMPSHIRE COUNTY, MASSACHUSETTS

3. Topics • Divorce • Never Married Parents • Assisted Reproductive Technology • New Types of Parents • Adoption • Same-Sex Married Parents

4. Divorce “Upon a judgment for divorce, the court may make such judgment as it considers expedient relative to the care, custody and maintenance of the minor children of the parties . . . In determining the amount of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines promulgated by the chief justice of the trial court . . . .” • G. L. c. 208, § 28

5. Divorce • Buckley v. Buckley, 42 Mass. App. Ct. 716 (1997) • Duty of support lies with the wife as well as the husband. • Ross v. Ross, 50 Mass. App. Ct. 77 (2000) • Although a judge has considerable discretion in determining support obligations in a divorce proceeding, children are entitled to adequate support and maintenance reasonably within the power of both parents to furnish it. • Santagate v. Tower, 64 Mass. App. Ct. 324 (2005) • Father had an obligation to support his minor children, whom he abandoned for 27 years, and was unjustly enriched by Mother providing Father’s share of support for their children. • Mother entitled to restitution for amounts expended for the care and maintenance of the children.

6. Divorce • White v. Laingor, 434 Mass. 64 (2001) • Unenforceable agreement where Mother agreed to accept reduced lump sum payment of child support arrearages in exchange for Father’s consent to adoption of children by Mother’s new husband. • An agreement to fix a spouse’s support obligation for minor children stands on different footing from interspousal agreements, as parents may not bargain away the rights of their children to support. • Agreements between parents to reduce child support obligations in exchange for the surrender of parental rights, without a judicial finding that the proposed agreement is in the best interests of a child, violate public policy.

7. Never Married Parents “It is the purpose of this chapter to establish a means for such children either to be acknowledged by their parents voluntarily or, on complaint by one or the other of their parents or such other person or agency as is authorized to file a complaint by section five, to have an acknowledgment or adjudication of their paternity, to have an order for their support and to have a declaration relative to their custody or visitation rights ordered by a court of competent jurisdiction.” • G. L. c. 209C, § 1

8. Never Married Parents • Gomez v. Perez, 409 U.S. 535 (1973) • Children born out of wedlock have the same statutory right to support as children born to married parents. • Doe v. Roe, 23 Mass. App. Ct. 590 (1987) • A child born out of wedlock has the same rights to support after age 18 from adjudicated father as children of divorced parents would have from their parents. • Department of Revenue v. Mason M., 439 Mass. 665, 672 (2003) • “[I]t is neither unreasonable nor unjust to require noncustodial parents to adjust their monthly expenses in order to provide for the support of their minor children in a manner that will best serve their welfare.”

9. Assisted Reproductive Technology • Artificial Insemination • Sperm Donation • Surrogacy • Gestational Surrogacy

10. Artificial Insemination “Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.” • G. L. c. 46, § 4B

11. Artificial Insemination • Woodward v. Commissioner of Social Security, 435 Mass. 536 (2002) • Wife conceived children through artificial insemination with sperm that her deceased husband had preserved. • The children are entitled to full rights of support and inheritance only if Wife could show: • A genetic relationship between the child and the decedent; and • The decedent affirmatively consented to both • Posthumous conception; and • Support of any resulting child. • Okoli v. Okoli, 81 Mass. App. Ct. 371 (2012) • Consent to artificial insemination of one’s spouse is consent to create a child—consent to create a child creates parental status, including the obligation to support the child.

12. Sperm Donation • Doe v. XYZ Co. Inc., 75 Mass. App. Ct. 311 (2009) • Plaintiff artificially inseminated, by sperm bank via anonymously donated sperm, sues sperm bank for the identity of the donor so that she can establish paternity and get a support order. • Relying on Woodward, the trial court threw out the support aspect because the nature of the anonymous donation indicates there was no consent to support the resulting child, and the Appeals Court supported this argument.

14. Surrogacy • R.R. v. M.H., 426 Mass. 501 (1998) • Surrogate mother’s consent to custody could not be recognized unless given on or after fourth day following child’s birth. • Applying the same statutory restriction that governs mother’s consent to adoption, G. L. c. 210, § 2 • No private agreement concerning adoption or custody of a child can be conclusive because a judge must decide what is in the best interests of the child.

17. Gestational Surrogacy • Culliton v. Beth Israel Deaconess Medical Center, 435 Mass. 285 (2001) • Probate and Family Court has the authority to issue pre-birth orders declaring plaintiffs to be the parents of children born to gestational surrogate, even though technically they are children born out of wedlock. • Judgment should enter declaring that the plaintiffs are the parents of the children and ordering the hospital to put the plaintiff’s names on all records of birth. • Hodas v. Morin, 442 Mass. 544 (2004) • Allows choice-of-law provision in gestational surrogacy contract.

18. New Types of Parent: Parent by Estoppel • A parent by estoppel is an individual who, though not a legal parent, • Is obligated to pay child support; or • Lived with the child for at least two years, and • Over that period has a reasonable, good-faith belief that he was the child’s biological father, based on marriage to the mother or on the actions or representations of the mother, and fully accepted parental responsibilities consistent with that belief, and • If some time there after that belief no longer existed, continued to make reasonable, good-faith efforts to accept responsibilities as the child’s father; or • Lived with the child since the child’s birth, holding out and accepting full and permanent responsibilities as parent, as part of a prior co-parenting agreement with the child’s legal parent (or, if there are two legal parents, both parents) to raise the child together each with full parental rights and responsibilities, when the court finds that recognition of the individual as a parent is in the child’s best interests; or • Lived with the child for at least two years, holding out and accepting full and permanent responsibilities as a parent, pursuant to an agreement with the child’s parent (or, if there are two legal parents, both parents), when the court finds that recognition of the individual as a parent is in the child’s best interests. • American Law Institute, Principles of the Law – Family Dissolution

19. New Types of Parent: De Facto Parent • A de facto parent is an individual other than a legal parent or a parent by estoppel who, for a significant period of time not less than two years, • Lived with the child, and • 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, • Regularly performed a majority of the caretaking functions for the child, or • Regularly performed a share of caretaking functions at least as great as that of the parent with whom the child primarily lived. • American Law Institute, Principles of the Law – Family Dissolution

20. De Facto Parent • E.N.O. v. L.M.M., 429 Mass. 824 (1999) • Plaintiff sought visitation with the biological children of former same-sex partner. • Plaintiff found to be de facto parent • Participated in the child’s life as a member of the child’s family • Participated in the birth of the child as a father would • Listed on the birth announcements • Plaintiff and defendant had a parenting agreement • Determining de facto status is highly fact specific to each case.

21. De Facto Parent • A.H. v. M.P., 447 Mass. 828, 837 (2006) • “The de facto parent shapes the child’s daily routine, addresses his developmental needs, disciplines the child, provides for his education and medical care, and serves as his moral guide . . . .” • Plaintiff not a de facto parent • Failed to prove the continued contact between plaintiff and child was in the child’s best interests • Ignored defendant’s directives regarding the child’s care and custody • Child would not suffer irreparable harm from the severing of his contact with the plaintiff

22. Adoption “If the court is satisfied of the identity and relations of the persons, and the petitioner is of sufficient ability to bring up the child and provide suitable support and education for it, and that the child should be adopted, it shall make a decree, by which, except as regards to succession to property, all rights, duties, and other legal consequences of the natural relation of child and parent shall thereafter exist between the child and the petitioner and his kindred . . . .” • G. L. c. 210, § 6

23. Adoption • Adoption of Tammy, 416 Mass. 205 (1993) • Adoption statute does not preclude same-sex cohabitants from jointly adopting child. • Established second-parent adoption for unmarried cohabitants in Massachusetts • Adoption of Marlene, 443 Mass. 494 (2005) • Biological parent’s consent to adoption of his or her child does not terminate the parental duty to support the child—duty continues until adoption is finalized.

24. Second Parent Adoption and Same-Sex Couples Source: States with unclear parenting laws for LGBT people States where second-parent adoption is an option for same-sex couples statewide (22 states and DC) States with obstacles to equal treatment (8 states). Mississippi and Utah: same –sex couples prohibited from adopting; Michigan: state courts have ruled that unmarried individuals may not jointly petition to adopt; Kentucky, Nebraska, North Carolina, Ohio, Wisconsin: state courts have ruled that second-parent adoptions are not available under current law

25. 3+ Parent Adoption • In re M.C., 195 Cal.App.4th 197 (2011) • Child was placed in foster care after a domestic violence situation between her two mothers landed one in jail and the other in the hospital. • Child was not legally allowed to go live with her biological father. • Trial court judge found the child to have 3 parents (biological mother, biological father, and biological mother’s ex-wife). • Appeals court agreed, however it also held that the child could not have 3 parents under existing California law. • In 2013, the California legislature passed a law in response to In re M.C., amending, inter alia, the definitions section of the California Family Code, allowing a child to have more than 2 legal parents. • California Family Code § 7601 (c) This part does not preclude a finding that a child has a parent and child relationship with more than two parents. (d) For purposes of state law, administrative regulations, court rules, government policies . . . any reference to two parents shall be interpreted to apply to every parent of a child where that child has been found to have more than two parents under this part.

26. Same-Sex Marriage Laws Source: Human Rights Campaign and The National Journal Current through February 26, 2014

27. Same-Sex Married Parents • Goodridge v. Department of Public Health, 440 Mass. 309 (2003) • Denying civil marriage to same-sex couples violates state constitutional equal protection principles. • “Without the right to marry—or more properly, the right to chose to marry—one is excluded from the full range of human experience and denied full protection of the laws . . . .” (Id. at 326) • “While the laws of divorce provide clear and reasonably predictable guidelines for child support, child custody, and property division on dissolution of marriage, same-sex couples who dissolve their relationships find themselves and their children in the highly unpredictable terrain of equity jurisdiction . . . .” (Id. at 335)

28. Same-Sex Married Parents • Della Corte v. Ramirez, 81 Mass. App. Ct. 906 (2012) • The former same-sex spouse of a mother is the legal parent of a child born during the marriage. • The term “husband” in G. L. c. 46, § 4D regarding artificial insemination does not exclude same-sex married couples. • Second-parent adoption is not needed to confer legal parentage on the non-biological parent if the child is born of the marriage.

29. Same-Sex Married Parents • Hunter v. Rose, 462 Mass. 488 (2012) • Children born to same-sex parents are the children of both parents. • California’s domestic partnership law provides virtually identical rights as marriage. Failing to recognize a domestic partnership would allow a partner to avoid obligations such as child support. • Children’s welfare was promoted by ensuring that they had two parents to provide financial and emotional support.