19 A.3d 730 (Del.Fam.Ct. 2010), CS09-03603, Bancroft v. Jameson

Docket Nº:CS09-03603.
Citation:19 A.3d 730
Opinion Judge:HENRIKSEN, J.
Party Name:In re the Matter of Blake Sebastian BANCROFT v. Tabitha JAMESON. Raymond Nickelson In the Interest of Breanna M. Nickelson DOB: [Redacted].
Attorney:Stephen Welsh, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, Attorney for Blake Sebastian Bancroft. Tom Bodie, Esquire, Lewes, DE, Delaware Volunteer Legal Services, Attorney for Tabitha Jameson. Raymond Nickelson, Pro Se.
Case Date:July 15, 2010
Court:Family Court of Delaware

Page 730

19 A.3d 730 (Del.Fam.Ct. 2010)

In re the Matter of Blake Sebastian BANCROFT


Tabitha JAMESON.

Raymond Nickelson

In the Interest of Breanna M. Nickelson DOB: [Redacted].

No. CS09-03603.

Family Court of Delaware, Sussex.

July 15, 2010

Submitted: Dec. 23, 2009.

Stephen Welsh, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, Attorney for Blake Sebastian Bancroft.

Tom Bodie, Esquire, Lewes, DE, Delaware Volunteer Legal Services, Attorney for Tabitha Jameson.

Raymond Nickelson, Pro Se.



On July 06, 2009, the Delaware Legislature amended Delaware's Uniform Parentage

Page 731

Act to include a provision establishing and defining a de facto parent.1 Reviewing the circumstances of the present action in light of the recent de facto parent amendment begs the question: How many parents can a child have? In considering this basic question, does Delaware's recently added de facto parent statute violate an existing parent's due process rights as guaranteed by the 14th Amendment of the Constitution of the United States as well as Article 1, Section 9, of the Constitution of the State of Delaware? 2 For the reasons hereafter stated, the Court holds the de facto parent statute, upon which Petitioner relies to have standing to seek custody of a child not his biological child, and where the child already has two fit parents, violates the due process rights of the child's biological parents. As such, Petitioner lacks standing to bring his action, and his case must be dismissed.

Setting the Stage: Smith v. Gordon

The legislative amendment to Delaware's Uniform Parentage Act, which established and defined a de facto parent, was likely created in response to the Delaware Supreme Court's Decision of February 03, 2009, in the case of Smith v. Gordon. 3 In Smith v. Gordon, the Delaware Supreme Court held a former lesbian partner of a child's adoptive mother did not have standing to seek custody of the adopted child under the claim of being a de facto parent.4 The Delaware Supreme Court determined it was not for the Delaware Judiciary to expand the definition of a parent-child relationship beyond what the Delaware Legislature had already set forth in a law which unambiguously defined the parent-child relationship.5 Even more, the Delaware Supreme Court stated the Delaware Legislature clearly declined to include the de facto parent definition in Delaware's Uniform Parentage Act despite the Legislature's knowledge of such a doctrine being considered in certain other states around the country.6

Likely in response to the decision in Smith v. Gordon, the Delaware Legislature quickly amended Delaware's Uniform Parentage Act on July 06, 2009 to include a de facto parent provision.7 The de facto parent amendment expanded the definition of what relationships could qualify as a parent-child relationship. The amendment states the de facto parent relationship will be established if the Family Court determines the person claiming to be a child's de facto parent can demonstrate the existence of the following three factors:

1) Has the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;

Page 732

2) has exercised parental responsibility for the child as that term is defined in Section 1101 of this Title; and

3) has acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature.8

In reading the foregoing provisions, one must take particular note of the wording contained in the above Subsection 1, where it states the person claiming to be the de facto parent " has had the support and consent of the child's parent or parents (Emphasis added) ..." 9 The crux of the issue before this Court lies particularly within the language just emphasized, where the language appears to clearly suggest a child, although already having two fit parents, may now have a third parent, or perhaps even more parents.

Facts of Case Sub Judice

Blake Sebastian Bancroft, hereinafter referred to as " Boyfriend," has filed for custody of 9 year old Breanna Nickelson, hereinafter referred to as " Child," born [REDACTED]. Boyfriend avers the de facto parent amendment gives him standing to seek custody of Child, a child who is not Boyfriend's biological child. Child's biological parents are Tabitha Jameson, mother, and Raymond Nickelson, father. Mother and Father share joint custody of Child, with Child residing primarily with Mother, and Father having visitation, pursuant to a Consent Order dated June 28, 2005.

Child's biological father, as well as his extended family, visits Child on a regular basis. Father has also maintained his child support.10 Visitation for Child's paternal grandparents was specifically provided for in the Consent Order entered into between Mother and Father dated June 25, 2005, in response to a petition filed by Paternal Grandparents.

Boyfriend has lived with Mother for the past 5 years. During those 5 years, Mother and Boyfriend never married. However, Mother and Boyfriend have a child together, 5 year old Molly, born [REDACTED]. Nine year old Child has lived in the home occupied together by Mother, Boyfriend, and Child's 5 year old half-sibling, during the 5 years Mother and Boyfriend resided together. Boyfriend filed a Petition for Custody of 9 year old Child, as well as a Petition for Custody of his 5 year old biological daughter, shortly after Boyfriend and Mother separated around December 18, 2009.

Although Boyfriend's initial Custody Petition of Child, wherein he alleged he has standing to file as a de facto parent, alleged both of Child's biological parents consented to him assuming parental responsibilities, both parents have filed affidavits denying their consent. Boyfriend also averred in his initial petition that Biological Father was not involved in Child's life. This allegation has also been denied. Finally, in Boyfriend's Petition for De facto Custody, he claimed Child's best interest would be served by allowing Child to reside primarily with Boyfriend.

In an emergency affidavit filed along with his Custody Petition, Boyfriend alleged he should be awarded joint custody of Child along with the biological parents,

Page 733

and he should also be awarded primary placement of Child. The only allegation Boyfriend made in his initial pleadings that might even remotely suggest Child was not properly being cared for by her biological parents was found in the emergency affidavit, wherein Boyfriend requested Child's biological parents be granted supervised visitation. Boyfriend alleged nothing about Child's biological father's ability or inability to care for Child. As to Mother, Boyfriend's only concern was that Mother had threatened to take Child and go to another state. The Court is aware that Mother at one time took Child to another state, and the Court had to issue an Order, at Father's request, seeking another state's assistance in bringing Mother and Child back to the state for litigation between Child's biological parents. However, Mother stated her reason for leaving was to get her and Child away from the domestically violent atmosphere in which she was living with Boyfriend.11 As already noted, Mother and Father were thereafter able to arrive at a Consent Custody and Visitation Order regarding Child.

Except for the concern that Mother might leave the state with Child, nothing in Boyfriend's pleadings suggested Child was not being adequately cared and provided for by Mother or Father. In fact, in a memorandum filed by Boyfriend's attorney on February 12, 2010, the second paragraph states, " it is in the best interest of both [Child's half-sibling] and [Child] to primarily reside with [Boyfriend] with both [biological parents] receiving liberal visitation (Emphasis added)." The sum and substance of all of Boyfriend's pleadings fails to indicate any suggestion that Child was either dependent or neglected in the care of her parents.

Delaware Uniform Parentage Act

The Delaware Supreme Court's Decision of Smith v. Gordon provided an extensive history of the development of Delaware's Uniform Parentage Act (" UPA" ).12 The National Conference of Commissioners on Uniform State Laws (" NCCAUSL" ) promulgated the first version of a Uniform Parentage Act in 1973.13 The Supreme Court's Opinion indicated the UPA was intended to identify " two legal parents for both marital and non-marital children." 14 The Supreme Court's Decision also indicated the main thrust of the original Act

Page 734

was to assert the rights of children born out of wedlock in civil paternity actions against fathers, and also to bring a maternity action in rare cases where the identity of the biological mother might be disputed.15 The State of Delaware basically adopted the 1973 version of the UPA in 1983.16

The Decision in Smith v. Gordon went on to note how, in 1988, in response to the increasing use of assisted reproduction and surrogacy agreements, a new Uniform Act was promulgated for states to consider, the Uniform Status of Children of Assisted Conception Act (" USCACA" ).17 The purpose of the USCACA was to establish the legal parents of children born as the result of assisted reproduction. The USCACA was then followed with the Uniform Putative and Unknown Fathers Act (" UPUFA" ) with procedures for identifying putative and unknown fathers and for terminating their parental rights.

The National Conference of Commissioners on Uniform State Laws (" NCCUSL" ) revised the UPA in 2000.18 As noted in Smith v. Gordon, the revised Act, although...

To continue reading