Bethany v. Jones

• Decision Date: 17 February 2011
• Docket Number: No. 10–295.,10–295.
• Parties: Alicia BETHANY, Appellant v. Emily JONES, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 67

378 S.W.3d 731

Alicia BETHANY, Appellant

v.Emily JONES, Appellee.

No. 10–295.

Supreme Court of Arkansas.

Feb. 17, 2011.

Garnett, Naramore, Drake & Naramore, P.A., by: Wade T. Naramore and J. Joshua Drake, Hot Springs, for appellant.

Robertson Law Firm, Little Rock, by: Bonnie Robertson, for appellee.

DONALD L. CORBIN, Justice.

The instant matter involves a dispute over child visitation. Appellant Alicia Bethany,biological mother of minor child, E.B., argues on appeal that Appellee Emily Jones, Bethany's former same-sex partner, has no recognizable right entitling her to visitation with E.B. In support of her contention, she argues on appeal that the circuit court erred (1) in denying her motion to dismiss where Jones could not maintain any cause of action; (2) in denying her motion for directed verdict because there is no law in Arkansas that allows Jones to have visitation with the minor child; (3) in granting visitation under a theory of in loco parentis or equitable estoppel; and (4) in failing to transfer this case from Perry County to Garland County, where venue was proper. We granted Appellant's motion to transfer this case from the Arkansas Court of Appeals as it involves an issue of first impression; hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1–2(b)(1) (2010). We affirm the order of the circuit court.

The facts are largely undisputed. Bethany and Jones were same-sex partners from 2000 until 2008. In 2003, the parties purchased a home together, with both of their names listed on the mortgage. Then, in 2004, the parties began to take steps toward having a family. A male friend of Jones's agreed to donate sperm. Bethany agreed to carry the child because Jones was experiencing some health issues, including reproductive problems. Through the process of artificial insemination, Bethany became pregnant, and the minor child was born in 2005. The couple chose to give the child Jones's last name and Jones's grandmother's name as the child's middle name. The testimony at trial revealed that Bethany and Jones intended to co-parent the child. In fact, Bethany testified that at the time of conception, she considered Jones to be E.B.'s parent.

After E.B.'s birth, the parties agreed that Jones would remain at home as the child's primary caregiver with Bethany returning to work on a full-time basis. E.B. referred to Bethany as “mama” and to Jones as “mommy.” It was undisputed that E.B. formed close relationships with members of Jones's family, calling Jones's parents “Grammy” and “Poppy.” Bethany was not close to either of her parents, and E.B. had little or no relationship with either of them.

In 2008, the parties ended their romantic relationship, but at that time agreed to continue co-parenting E.B. However, the situation between Bethany and Jones began to deteriorate. They had a disagreement over Jones keeping E.B. for a twenty-four-hour period, against Bethany's wishes. Bethany, who had entered into a relationship with another woman, decided that it was no longer in E.B.'s best interest to have contact with Jones because she questioned Jones's ability to parent, citing such factors as instability, depression, safety of the child, and truthfulness of Jones.

After Bethany denied Jones visitation with E.B., Jones filed the instant action for custody alleging breach of contract based upon equitable estoppel. ¹ Bethany sought to have the complaint dismissed, arguing that Jones lacked standing to bring the suit, as there was nothing in Arkansas law that allowed her to seek visitation with E.B. Alternatively, she sought to have the case transferred to Garland County, claiming that the child resided in Hot Springs, Arkansas.

A hearing on the motion was held on February 11, 2009. Counsel for Bethany argued that there was no basis in the law for the petition, as Jones was not a biological parent, nor was there any support for a finding that Jones stood in loco parentis to the child. On the contrary, Jones argued that she did stand in loco parentis and that there was ample statutory authority for awarding her custody of the child on that basis. Jones also argued that she and Bethany formed an agreement that they would have a child, that Jones would stay at home and take care of the child while Bethany worked, and that they would raise the child together. Jones asserted that Bethany breached that agreement and, thus, the court could fashion an equitable remedy for breach of an implied contract.

A second hearing was held on June 9, 2009, on a motion for summary judgment filed by Jones and a second motion to dismiss filed by Bethany. Jones argued that there was substantial evidence that she stood in loco parentis to E.B. She further argued that even though there was no statutory authority allowing a same-sex partner to seek custody or visitation with a minor child, the concept of in loco parentis was well recognized in Arkansas and allowed the circuit court to grant visitation from an equitable standpoint—as it was in E.B.'s best interest that her relationship with Jones continue. Bethany countered that there was no legal basis for visitation, as this situation was “no different than if a nanny decided they had become really close to a child and they wanted to file a case for custody.” Bethany further argued that the fashioning of any remedy was a matter for the legislature.

A bench trial was held on October 30, 2009. Bethany testified that she met and began a relationship with Jones in 2000 and that the couple bought a home together in 2003. She stated that they lived together until November 2008. According to Bethany, she and Jones began discussing having a child together and met with a prospective sperm donor in 2004. They informed the potential donor, who was a friend of Jones's, that they did not expect him to have any kind of legal or emotional relationship with the child. At some point, the parties agreed that Bethany would carry the child because she was in better health physically. Jones was the one who actually inseminated Bethany. Bethany admitted that Jones went to every doctor's appointment with her and was present during E.B.'s birth. Bethany further stated that originally she gave the child the middle name Lillian, which was Jones's paternal grandmother's name, and Jones's last name but has since removed the name Lillian and changed her last name, via court order. Bethany denied being estranged from her family. She did admit, however, that prior to and after E.B.'s birth, she considered Jones to be a co-parent and that E.B. referred to Jones as “mommy.” She also admitted that after the pair split, she intended to continue parenting with Jones. Bethany also testified about the incident that led her to stop Jones's visitation with E.B., claiming that Jones kept E.B. past the agreed-upon time for returning her. According to Bethany, Jones kept the child for over twenty-four hours after her visitation ended. Bethany stated that she thought this episode demonstrated that Jones was irrational and emotionally unstable and that visitation should no longer occur. Bethany admitted that E.B. thought of Jones's parents as her grandparents and spent all holidays with Jones's family. She also admitted that Jones stayed at home for over three years to take care of the child but denied that the child was traumatized by Jones no longer being in her life.

On cross-examination, Bethany testified that she worried about Jones's long-standingbattle with depression. She opined that Jones lacked the ability to parent. She also stated that after E.B. was born, Jones was diagnosed with Chiari syndrome, a condition that causes migraine-like headaches, and that some days she was not able to take care of E.B. She also stated that in her opinion it was not in E.B.'s best interest to resume visitation because Jones had done nothing to rebuild her trust after the prior incident when she kept E.B. past the visitation deadline. Bethany opined that she did not think that Jones was fit and capable of taking care of E.B. Finally, Bethany testified that she has been a resident of Garland County since the time that the instant action was filed and that she lives there with her partner, her partner's daughter, and E.B. Bethany stated that she considered her partner to be a stepparent to E.B.

Jones testified that she was E.B.'s caretaker for the first years of her life. She denied that she was unable to take care of the child because of her health. She stated that Bethany was always close to Jones's family. She stated that Bethany had issues with depression that worsened after E.B.'s birth. Jones stated that her mom would sometimes watch E.B. so that she could occasionally work outside the home. Jones explained that when she kept E.B. past the twenty-four-hour period she did so because she was concerned about Bethany's plan to put E.B. in a car for an extended amount of time to go to Dallas to see people E.B. did not know. Jones stated that she and Bethany had an oral agreement that they would raise the child together, and they never had any discussions about what would happen if they split up. Jones admitted that neither she nor Bethany ever took any steps to legalize their relationship.

At the conclusion of the trial, the circuit court ruled from the bench that Jones had sustained her burden of proof to establish a relationship with E.B. based on the doctrine of in loco parentis. Thus, the court announced that it was going to allow Jones to have visitation. The circuit court further stated that it was in E.B.'s best interests to have a relationship with both women and their families.

In a written order entered on November 24, 2010, the circuit court awarded Jones visitation rights. He relied, in part, on the case of Robinson v. Ford–Robinson, 88 Ark. App. 151, 196 S.W.3d 503 (2004), where the court of appeals affirmed a lower court's grant of visitation rights to a stepparent who stood in loco parentis.²...