This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Washington Unit, Family Division. Thomas A. Zonay, J. (12-152).
On Appeal from Superior Court, Caledonia Unit, Family Division. M. Kathleen Manley, J. (12-154).
Steven A. Adler and Daniel D. McCabe of Axelrod & Adler, PLLC, St. Johnsbury, for Plaintiff-Appellant (12-152) and Defendant-Appellant (12-154).
Noel Sylvester, Pro Se, Morrisville, Defendant-Appellee (12-152) and Plaintiff-Appellee (12-154).
Present: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ. Dooley, J., concurring. Robinson, J., dissenting.
[¶1] In this consolidated appeal defendant Christopher Moreau contests the Washington family court's dismissal of his emergency petition for child custody and parentage complaint over children with whom he shares no biological or other established legal connection, as well as the Caledonia family court's issuance of a relief-from-abuse (RFA) order denying him visitation with the children. Defendant contends that he is the children's de facto parent and entitled to assert and be heard on custody, parentage and visitation rights. We disagree and affirm.
[¶2] The following background is drawn from findings of fact made by the Caledonia family court at the final RFA order hearing. Plaintiff and defendant were in an on-again-off-again relationship for eight to ten years; they never married. Plaintiff is the mother of two children, born in 2003 and 2006. Defendant is not the biological father of either child. Nevertheless, he played a significant, father-figure
role in both of the children's lives. Although plaintiff and defendant separated in February 2009, they had an ongoing arrangement for shared responsibility for the children. For example, the children lived with defendant for a period of time in May 2011 when flooding rendered plaintiff's residence uninhabitable. During the periods of care assigned to defendant, he was sometimes unwilling to return the children to their mother, and plaintiff testified credibly that this created a dangerous situation on at least one occasion.
[¶3] The incidents giving rise to the present appeals occurred on March 5, 6 and 7, 2012. The parties' rapport had deteriorated in the preceding days, and the children were with plaintiff in the home she shared with her new partner. On March 5, defendant sent plaintiff a text message at 8:05 p.m. stating " I promise you, for the rest of my life, I will find my girls and I will never stop, ever."
[¶4] In the early hours of March 6, defendant and a friend drove to the new partner's place of employment to confirm he was at his job and not at plaintiff's residence. Defendant and his friend then drove to plaintiff's home, arriving at approximately 2 a.m. They proceeded to knock on plaintiff's door for at least ten minutes. Defendant claimed that he did this out of concern for the children. Plaintiff was at home with her children without a vehicle or a cell phone she believed to be operable. Plaintiff was also aware that defendant owned a gun.
[¶5] Twenty-four hours later, on March 7, defendant and his friend again drove to the new partner's place of employment to verify he was not at plaintiff's residence. Defendant and his friend arrived at plaintiff's home at 2 a.m., and defendant directed his friend to bang on plaintiff's door. Defendant then joined his friend and together they banged on the door until the police arrived. Defendant claimed that the purpose of the visit was to drop off some of the children's belongings so they could have them for school. Defendant gave these belongings to police officers who placed them in plaintiff's possession. Defendant was then served with a temporary RFA order, which plaintiff had obtained the day before.
[¶6] At the final RFA hearing on April 3, 2012, the trial court concluded that defendant had placed plaintiff and her children in imminent fear of serious physical harm. The trial court issued an RFA order prohibiting defendant from contacting or interacting with plaintiff as well as the children for one year, noting that " [d]efendant is not their biological father." Defendant appeals this order in docket 2012-154.
[¶7] Meanwhile, before the final RFA hearing and evidently unbeknownst to plaintiff, defendant filed in the Washington family court an emergency petition for visitation and a parentage complaint seeking sole physical and legal custody of plaintiff's children. The trial court dismissed both actions on April 24, 2012 because defendant is not related to the children in any way. Defendant appeals this dismissal in docket 2012-152.
[¶8] On appeal, defendant requests a remand for evidentiary findings as to whether he is a de facto parent of plaintiff's children and, if so, whether visitation is in the children's best interest. Defendant argues that: (1) we should apply the best-interest-of-the-children principle contained in Vermont custody statutes " to create enforceable visitation between children and de facto parents" ; (2) we should reexamine our reasoning in Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682 (1997), denying equitable relief to persons asserting de facto parentage because " changing demographics in Vermont necessitate a modernized interpretation of the law" ; and (3) in
the past, this Court has interpreted existing statutes and the Vermont Constitution to expand custody and marriage laws. Plaintiff, representing herself, did not file a responsive brief.
[¶9] Some background on the development of parental rights and visitation law in Vermont, especially outside the context of divorce proceedings for persons not related by blood to children, will assist the reader. In 1984 the Legislature enacted the Parentage Proceedings Act, giving putative fathers the right, denied at common law, to establish paternity and thus pursue custody or visitation. 15 V.S.A. § § 301-306.
[¶10] In 1985, this Court recognized that 15 V.S.A. § § 291 and 293 empowered courts to award custody to still-married stepparents in cases of desertion, nonsupport, or living separately. Paquette v. Paquette, 146 Vt. 83, 85, 499 A.2d 23, 25-26 (1985). The Paquette Court also acknowledged that former 15 V.S.A. § 652, which set forth custody guidelines for any " child of the marriage" in divorce proceedings, allowed courts to award custody to stepparents standing in loco parentis, but only upon a showing " by clear and convincing evidence that the natural parent is unfit or that extraordinary circumstances exist to warrant such a custodial order, and that it is in the best interests of the child." Id. at 86, 92, 499 A.2d at 26, 30.
[¶11] Eight years later, we interpreted two provisions of Vermont's then-existing adoption statute, 15 V.S.A. § § 431 and 448, to allow adoption by an unmarried, same-sex partner of the child's birth mother without having to terminate the natural mother's parental rights. In re B.L.V.B., 160 Vt. 368, 369-70, 628 A.2d 1271, 1272-73 (1993). The statute authorized adoption by an unmarried " person," but, read literally, required terminating the " natural" parent's rights in favor of the adopting person's parental rights, except when the adopting person was a stepparent married to the natural parent. Id. at 370-71, 628 A.2d at 1273. We explained that, by " allowing same-sex adoptions to come within the step-parent exception of § 448, we are furthering the purposes of the statute as was originally intended by allowing the children of such unions the benefits and security of a legal relationship with their de facto second parents."  Id. at 375, 628 A.2d at 1276.
Thus, our holding corrected an " unreasonable and unnecessary" application of the statute that would thwart an adoption in the child's best interests by a person otherwise qualified to adopt, but for her partnership with the mother. Id. at 369, 628 A.2d at 1272. In 1996 the Legislature confirmed the B.L.V.B . holding in the new Adoption Act, 15A V.S.A. § § 1-101-8-101, providing that " [i]f a family unit consists of a parent and the parent's partner, and adoption is in the best interest of the child, the partner of a parent may adopt a child of the parent" without terminating his or her parental rights. Id. § 1-102(b).
[¶12] The concept of de facto parents was revisited in Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682 (1997), the case that is the focus of defendant's appeal here. Titchenal involved two women in a relationship who jointly participated in raising a child adopted by only one of them. The parties' relationship disintegrated, and the adoptive mother would not allow the plaintiff contact with the child. Lacking a statutory provision under which she could petition the family court, the plaintiff filed a complaint requesting the general civil court to exercise its equitable power to establish parent-child contact. The complaint was dismissed for lack of jurisdiction. Id. at 375-76, 693 A.2d at 683, 684 n.1. On appeal, the plaintiff urged this Court " to grant 'nontraditional' family members access to the courts by recognizing the legal rights of de facto parents" -- those persons who share a bond with a child but otherwise no legally cognizable connection, either through biology, marriage, statute or court order.
See id. at 376, 376 n.1, 693 A.2d at 683-84 (explaining " de facto parent" as a person with psychological bond to child, and doctrine of " in loco parentis" as entailing emotional and financial support, and that " [f]or purposes of this opinion, we see no need to draw fine lines between the doctrines. Plaintiff's point is that though she is not the legal parent of [the child], in all other respects she has acted as the child's parent." ).
[¶13] The precise issue addressed in Titchenal was whether equity provided an avenue for the civil court to adjudicate visitation claims within the then-exclusive jurisdiction of the family court, but incapable of being brought in family court under Vermont statutes. Id. at 375, 693 A.2d at 683. The Titchenal plaintiff posited that the family court retained jurisdiction to adjudicate parent-child contact disputes capable of being brought in a statutory proceeding, and that the civil court had equitable powers to adjudicate disputes involving parties not recognized by statute-such as claims brought by putative de facto parents. We found " no legal basis for plaintiff's proposal" because " [c]ourts cannot exert equitable powers unless they first have jurisdiction over the subject matter and parties. ... Equity generally has no jurisdiction over imperfect rights arising from moral rather than legal obligations; not every perceived injustice is actionable in equity -- only those violating a recognized legal right." Id. at 377, 693 A.2d at 684.
[¶14] Post- Titchenal, third-party child visitation rights reached the U.S. Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The Supreme Court held that, despite the " changing realities of the American family," a Washington State statute allowing for " [a]ny person" to petition for child-visitation rights " at any time" was impermissibly overbroad and an unconstitutional infringement upon the fundamental rights of parents to rear their children. Id. at 60, 64, 73. Declining to " define ... the precise scope of the parental due process right in the visitation context," the Court left open the possibility of third-party child-visitation statutes but cautioned that " any standard for awarding visitation turns on the specific manner in which that standard is applied ... the constitutional protections in this area are best elaborated with care." Id. at 73 (quotation omitted); see also Glidden v. Conley, 2003 VT 12, ¶ ¶ 19-21, 175 Vt. 111, 820 A.2d 197 (evaluating constitutionality of Vermont's grandparent visitation law in light of Troxel and construing statute to preclude court interference with fit parent's presumptively valid right to restrict grandparent visitation).
[¶15] Nonbiological parentage was last addressed in Miller-Jenkins v. Miller-Jenkins, 2006 VT 78, 180 Vt. 441, 912 A.2d 951, where we rejected the argument of the birth mother partner in a former civil union that the other partner had no parental rights to a child born to the union through their mutually-agreed-upon artificial insemination. The biological parent relied, in part, upon rebutting the presumption in 15 V.S.A. § 308(4) that a married person is the natural parent of a child born during the marriage. 180 Vt. 441, 2006 VT 78, ¶ 42, 912 A.2d 951. The presumption applied to civil unions because the parties to a civil union are statutorily entitled to all of the rights of married couples with respect to a child of whom either partner is the natural parent. 15 V.S.A. § 1204(f); see also id. § 1204(d) (" The law of domestic relations, including annulment, separation and divorce, child custody and support, and property division and maintenance shall apply to parties to a civil union." ).
[¶16] We concluded, however, that the § 308(4) presumption exclusively related to child support, and that neither the presumption nor its rebuttal was relevant to " the rights of parentage of children born through artificial insemination or to same-sex partners." Miller-Jenkins, 180 Vt. 441, 2006 VT 78, ¶ 44, 912 A.2d 951. Instead, the case was more akin to Paquette, insofar as the nonbiological same-sex partner was vested with " at least the status of a stepparent" within her civil union " by virtue of § 1204(d) and (f)." Id. ¶ ¶ 45, 47. Unlike in Paquette, we concluded in Miller-Jenkins that the nonbiological second parent qualified as a parent on equal footing with the biological mother.
[¶17] Moreover, the entire rationale behind Miller-Jenkins was to address the rights of civil union partners in the express context of their jointly intended artificial insemination. Id. ¶ ¶ 44, 48-52. Among the factors considered by the Court in
assigning parentage rights to the nonbiologically-related partner were the parties' legally recognized civil union, their mutual design to expand their family through artificial insemination, their shared active participation in prenatal care and birth, and their co-parenting from the time of conception until their breakup. Id. ¶ 56. By virtue of the equal-protection provision in the civil union statute, the factors that would make a husband a parent of a child born from artificial insemination applied equally to the nonbiological partner of a civil union. Id.
[¶18] The dissent characterizes Miller-Jenkins, which was hardly cited and barely discussed by defendant, as " closely analogous" and as addressing " the question actually presented here." Post, ¶ 49. But the differences between Miller-Jenkins and the present case far exceed their singular similarity of a now-estranged partner who shared child rearing with the biological mother. In this case, there is no civil union, or any other legally recognized domestic relationship between the parties as in Miller-Jenkins . Unlike the child in Miller-Jenkins, the children in this case are not the product of mutually-agreed-upon artificial insemination. Perhaps most critically, in this case there is no statutory extension of marital, stepparent or parental rights to the putative nonbiological parent upon which to base a parentage claim. In short, the parental rights recognized in Miller-Jenkins were based upon statutory rights of civil union partners, not on any general judicial endorsement of de facto parenthood.
[¶19] In this appeal, defendant contends that equity provides a jurisdictional basis for de facto parents to petition the family court for custody, parentage and visitation in the absence of a statutory right to do so, and notwithstanding the holding in Titchenal that equity confers no jurisdiction in the civil court for such claims. The dissent insists that defendant's claim is a statutory parentage action by which he may assert standing as a " natural parent" entitled to a parentage order under 15 V.S.A. § 302(a). Defendant, however, concedes that, as one who welcomed nonbiological children into his life, he has " no legal remedy."  He contends that the best-interests-of-the-child case law is inconsistent with our denial of equity jurisdiction in Titchenal to permit consideration of de facto parentage claims, and that developments in family dynamics, demographics, and both foreign and domestic case law since Titchenal, militate in favor of departing from that equity ruling.
[¶20] [3, 4] Thus, defendant's claim is essentially an appeal to equity -- particularly given his acknowledgement of the absence of
any available remedy at law. Titchenal, 166 Vt. at 377, 693 A.2d at 684 ( " [A] court may exert its equitable powers to grant appropriate relief only when ... no adequate legal remedy is available." ); Gerety v. Poitras, 126 Vt. 153, 155, 224 A.2d 919, 921 (1966) (" Equity will not afford relief where there is a plain, adequate, and complete remedy at law." ). For its part, the dissent embarks on statutory construction and case analysis not advanced by defendant, even though this Court ordinarily rejects arguments not raised on appeal. Mullestein, 148 Vt. at 175, 531 A.2d at 893.
[¶21] For the reasons discussed below, we decline defendant's invitation to abandon our reasoning in Titchenal and accept a broad de facto parent doctrine, as suggested by defendant, that essentially would allow any former domestic partner to compel a biological parent to defend against the unrelated ex-partner's claim that he or she is a " parent" entitled to judicially enforced parental rights and responsibilities. See S. Coupet, " Ain't I a Parent?" : The Exclusion of Kinship Caregivers from the Debate over Expansions of Parenthood, 34 N.Y.U. Rev. L. & Soc. Change 595, 595-96 (2010) (arguing that de facto parenthood should not be limited to conjugal relationships and advocating for inclusion of kinship caregivers as potential de facto parents). Though ultimately decided on jurisdictional grounds, the reasoning of Titchenal, which declined to recognize an equitable basis for jurisdiction over de facto parents, is no less compelling when applied to the same cause of action in family court.
[¶22] Defendant is in the same position as the de facto parent in Titchenal, and equity does not support jurisdiction for a nonparent to assert child custody rights any more here than it did in Titchenal . The Titchenal Court explained that equitable powers are available " to grant appropriate relief only when a judicially cognizable right exists, and no adequate legal remedy is available. ... Courts may exert equitable powers based upon common-law, statutory, or constitutional rights, or upon judicial acknowledgement of public-policy considerations establishing an as-yet-unrecognized legal right." 166 Vt. at 377, 693 A.2d at 684. The plaintiff in Titchenal was without a statutory or constitutional right to petition the superior court, and so the question became whether common law or public policy considerations required recognition of de facto parents for jurisdictional purposes.
[¶23] Common law was unavailing in this respect. Vermont follows the " general common-law rule that parents ha[ve] the right to the custody, control, and services of their minor children free from governmental interference." Id. at 378, 693 A.2d at 685. We observed that Vermont had no common-law history of interfering with the rights of fit parents absent statutory authorization, with the narrow exception of the state's exercise of parens patriae power to adjudicate dependency or neglect petitions. Id.; see also In re A.D., 143 Vt. 432, 435-36, 467 A.2d 121, 124 (1983) (stating that when " the State intervenes in the area of child neglect, it does so as parens patriae to the child" with " a legitimate and compelling interest in the safety and welfare of the child" as well as " maintaining family integrity." (citation omitted)).
[¶24] Nor were public policy considerations helpful. The Titchenal plaintiff and those affected by the decision did not face circumstances " cruel or shocking to the average [person's] conception of justice" as a result of that decision. Titchenal, 166 Vt. at 380, 693 A.2d at 686 (alteration in original) (quotation omitted). Partners of heterosexual or same-sex couples could " protect their interests" in potential parentage through existing procedures. Id. Heterosexual couples could then and now, as same-sex couples can now, achieve parentage rights through marriage or adoption, and nonbiological parents in same-sex relationships can gain similar assurances through adoption.
[¶25] As in Titchenal, we acknowledge that " there are public-policy considerations that favor allowing third parties claiming a parent-like relationship to seek court-compelled parent-child contact." Id. at 385, 693 A.2d at 689. These considerations, however, are still not so persuasive as to compel recognition of a new cause of action, and matching equitable jurisdiction to entertain it, so that acquaintances and partners with less than adoptive or even stepparent status can seek court-compelled visitation with children of persons not legally related to them and against the wishes of their natural parents. As we observed in Titchenal, " [g]iven the complex social and practical ramifications of expanding the classes of persons entitled to assert parental rights by seeking custody or visitation, the Legislature is better equipped" to address this issue. Id. Deference
to the Legislature continues to be prudent " because the laws pertaining to parental rights and responsibilities and parent-child contact have been developed over time solely through legislative enactment or judicial construction of legislative enactments." Id.
[¶26] Essentially, defendant posits that legislative inaction since Titchenal in recognizing claims like his should prompt judicial invention of de facto parentage rights. Yet other than citing national and Vermont family demographics statistics that show more children in households with unmarried couples, defendant proffers no equitable consideration requiring this Court to find such jurisdiction where the Legislature has so far declined to extend it. Other courts have declined to fill defendant's perceived vacuum. See McGuffin v. Overton, 214 Mich.App. 95, 542 N.W.2d 288, 292 (Mich. Ct. App. 1995) (per curiam) (holding that no generalized third-party standing existed in custody proceeding for party with parent-like relationship because " [t]he Legislature ... has been very specific in limiting those third persons who may bring an action for custody" ); Alison D. v. Virginia M., 77 N.Y.2d 651, 572 N.E.2d 27, 29, 569 N.Y.S.2d 586 (N.Y. 1991) (holding that de facto parent did not have standing to pursue visitation with child because domestic
relations law " gives parents the right to bring proceedings to ensure their proper exercise of their care, custody and control" and " [w]here the Legislature deemed it appropriate, it gave other categories of persons standing to seek visitation ... in the child's best interests" (emphasis in original) (citations omitted)); In re Thompson, 11 S.W.3d 913, 923 (Tenn. Ct. App. 1999) (stating that although " Tennessee's legislature has generally conferred upon parents the right of custody and control of their children, it has not conferred upon" third parties who claim to be de facto parents " any right of visitation." (citation omitted)).
[¶27] Defendant's remaining arguments in support of recognizing jurisdiction over a claim of de facto parentage rights are unpersuasive. Defendant proposed a four-part test to determine persons qualified as de facto parents and thus eligible to proceed in seeking parent-child contact. Such an approach was considered and rejected in Titchenal, insofar as the plaintiff in that case argued that " tests could be created to assure that only those third parties who have developed an intended and shared de facto-parent relationship with a child could petition for visitation." 166 Vt. at 382, 693 A.2d at 687. Indeed, we seriously doubted that the practical ramifications of such a test were workable:
Although we might recognize new legal rights that would permit the superior court to extend its equitable jurisdiction, jurisdiction should not rest upon a test that in effect would examine the merits of visitation or custody petitions on a case-by-case basis. In reality, such a fact-based test would not be a threshold jurisdictional test, but rather would require a full-blown evidentiary hearing in most cases. Thus, any such test would not prevent parents from having to defend themselves against the merits of petitions brought by a potentially wide range of third parties claiming a parent-like relationship with their child.
Id. at 382, 693 A.2d at 687-88. Thus, any live-in member of a household with children would be eligible to plead the foundational facts for parent-child contact and claim family court jurisdiction, irrespective of whether the family court actually determined the person satisfied the requirements of such a test. Defendant's process would require legally recognized parents to answer and defend against third-party claims for child contact or custody at the threshold jurisdictional hearing. While some courts have opened their doors to these claims, we remain disinclined to follow suit absent an imperative from the General Assembly, lest every domestic break-up with children in the household become a potential battleground for child visitation and custody by ex-paramours, or even mere cohabitants.
[¶28] Vermont cases before Titchenal do not, as defendant argues, presage a different conclusion. Defendant looks to Paquette v. Paquette and Miles v. Farnsworth to support his jurisdictional claim. The cases are cited out of context, and are inapposite.
[¶29] Defendant seizes upon dicta in Paquette to the effect that " extraordinary circumstances may exist that ...