CEW v. DEW

• Decision Date: 06 April 2004
• Citation: 2004 ME 43,845 A.2d 1146
• Parties: C.E.W. v. D.E.W.
• Court: Maine Supreme Court

845 A.2d 1146

2004 ME 43

C.E.W. v. D.E.W.

Supreme Judicial Court of Maine.

Argued: February 13, 2003.

Decided: April 6, 2004.

Brian C. Hawkins, Esq. (orally), Bridgton, Maura A. Keaveney, Esq., Portland, for appellant.

Patricia A. Peard, Esq. (orally), Bernstein, Shur, Sawyer & Nelson, Kenneth P. Altshuler, Esq., Childs, Rundlett, Fifield, Shumway & Altshuler, Portland, Mary L. Bonauto, Esq., Gay & Lesbian Advocates & Defenders, Boston, MA, for appellee.

Michael Asen, Esq., Mittel, Asen, Eggert, Hunter & Cary, Portland, Judith M. Berry, Esq., Gorham, for amicus curiae.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

LEVY, J.

[¶ 1] D.E.W. appeals from a summary judgment entered in the Superior Court (Cumberland County, Bradford, A.R.J.) determining that C.E.W., as a de facto parent of D.E.W.'s minor son, is entitled to be considered for an award of parental rights and responsibilities. C.E.W. has parented the child equally with D.E.W., the biological mother, since the child's birth in 1994, but is not related to the child biologically or by adoption. D.E.W. concedes that C.E.W. is the child's de facto parent. She contends, however, that the court erred by declaring C.E.W. to be eligible for an award of parental rights and responsibilities because D.E.W., as the child's biological parent, is available to exercise parental authority and there is no allegation that she has or will place the child in jeopardy. In the alternative, D.E.W. asserts that the court erred by declaring its intention to consider an award of parental rights and responsibilities to C.E.W. and must instead limit any award to reasonable rights of contact. We disagree with both contentions and affirm the judgment.

I. BACKGROUND

[¶ 2] The undisputed material facts¹ establish the following history. C.E.W. and D.E.W. started living together in early 1992 and agreed that D.E.W. would conceive a child through artificial insemination. In anticipation of the child's birth, both women changed their last names, taking the E. from C.E.W.'s family name and the W. from D.E.W.'s maiden name, so that they and the child would all have the same last name. Soon after the child's birth, C.E.W. and D.E.W. signed a parenting agreement detailing their intention to maintain equal parental rights and responsibilities for the child.

[¶ 3] In February 1999, C.E.W. and D.E.W. separated when D.E.W. moved out, leaving the child with C.E.W. in the family home. Following the separation, C.E.W. and D.E.W. signed a second parenting agreement that (1) provided that each parent would share equally all child-care and educational decisions and expenses; (2) allocated responsibility for the child's health insurance, dental insurance, and uninsured health care expenses; and (3) set forth a parent-child contact schedule for vacations, holidays, and special events. C.E.W. and D.E.W. also agreed "to take all steps necessary to maintain a close, loving and healthy relationship with both parents," but that the child's "[p]rimary residence and visitations will be determined by the legal system."

[¶ 4] In accordance with their agreements, C.E.W. and D.E.W. have generally parented the child as equals, sharing responsibility for the many decisions and personal sacrifices expected of loving and involved parents. The child, now age nine, has bonded with C.E.W. as his parent. The undisputed material facts suggest that the child is both happy and healthy.

[¶ 5] In November 2000, C.E.W. filed a complaint in the Superior Court containing two counts. The first count, citing the court's equity jurisdiction, sought a declaration of her parental rights and responsibilities for the child.² The second count sought to equitably estop D.E.W. from denying C.E.W.'s status and obligations as a parent. The Superior Court (Fritzsche, J.) granted C.E.W.'s motion to seal and impound the file, to proceed with pseudonyms, and to close the proceedings to the public. D.E.W. moved to dismiss the complaint, asserting that she was willing to permit C.E.W. visitation with the child, but that she opposed any award of parental rights and responsibilities to C.E.W. and that the court could not award such rights absent a showing that she, as the biological parent, has or will place the child in jeopardy. The Superior Court (Bradford, A.R.J.) denied the motion.

[¶ 6] C.E.W. subsequently filed a motion for a summary judgment. Based on the detailed, undisputed facts presented by the parties, the court accepted the parties' stipulation that C.E.W. had functioned as the child's de facto parent throughout his life and entered a summary judgment,³ declaring C.E.W. eligible to be considered for an award of parental rights and responsibilities. The court also entered summary judgment in favor of C.E.W. on the second count, granting "C.E.W.'s claim that D.E.W. is equitably estopped from denying [C.E.W.'s] status as parent of [the child] with all rights and responsibilities of any parent under the State of Maine." D.E.W. appeals from the summary judgment as to Count I of the complaint, but not as to Count II.⁴

II. DISCUSSION

[¶ 7] Because D.E.W. did not controvert the material facts in C.E.W.'s statement of material facts, the material facts are deemed admitted, and our review is focused on any claimed errors of law. See M.R. Civ. P. 56(h)(4); Dickinson v. Clark, 2001 ME 49, ¶ 4, 767 A.2d 303, 305.

[¶ 8] D.E.W. asserts that the Superior Court erred in two respects. First, citing 19-A M.R.S.A. § 1653(2)(C) (1998),⁵ she argues that an individual who is not related to a child biologically or by adoption can never be eligible for an award of parental rights and responsibilities as a de facto parent when there is a legal parent who wishes to exercise her or his parental rights, and it is not claimed that the legal parent has or will place the child in jeopardy.⁶ Second, D.E.W. contends that even if a court may consider an award of parental rights and responsibilities in these circumstances, the remedy must be limited to an award of no more than "reasonable rights of contact" between the de facto parent and the child pursuant to section 1653(2)(B)⁷ and may not include a broader award of parental rights and responsibilities authorized by 19-A M.R.S.A. § 1653(2)(D) (Supp.2003).

[¶ 9] We have recognized de facto parental rights or similar concepts in addressing rights of third persons who have played an unusual and significant parent-like role in a child's life in several opinions over the last sixty years. We most recently considered the concept of de facto parental rights and responsibilities in Stitham v. Henderson, 2001 ME 52, 768 A.2d 598. See also Young v. Young, 2004 ME 44, 845 A.2d 1144 (issued this date). There, Henderson believed that he was the child's biological father for the first three years of the child's life because he was married to the child's mother at the time of conception and birth. Id. ¶¶ 2-3, 768 A.2d at 599-600. Following a divorce and the entry of a judgment awarding shared parental rights and responsibilities for the child, he learned that he was not the biological father after DNA test results established that the mother's new husband was the child's biological father. Id. ¶ 3, 768 A.2d at 600. In a paternity action brought by the new husband, the Superior Court declared the new husband's paternity and dismissed, without prejudice, Henderson's counterclaim to establish equitable parental rights. Id. ¶¶ 4-5, 768 A.2d at 600. We held that the Superior Court correctly dismissed the counterclaim because there was a post-divorce motion between Henderson and the child's mother pending in the District Court, a court that "has jurisdiction to determine the parental rights regarding the children before it in divorce and post-divorce matters." Id. ¶ 17, 768 A.2d at 603. We concluded that "[b]ecause of his prior legal relationship to the child and his current role as a de facto parent, the District Court has jurisdiction to decide whether it is in the best interests of [the child] for Henderson to have a continuing role in [the child's] life and what that role should be." Id.

[¶ 10] We also observed in Stitham that "[m]atters involving the custody or best interests of a child are equitable in nature," and that "[t]he District Court is the forum where sensitive family matters should ordinarily be resolved." Id. ¶ 16 & n. 5, 768 A.2d at 603; see also In Re Shane T., 544 A.2d 1295, 1297 (Me.1988) (noting that proceedings to adjust the relationship between a parent and child were traditionally heard in equity). When exercising its parens patriae power, the court⁸ puts itself in the position of a "wise, affectionate, and careful parent" and makes determinations for the child's welfare, focusing on "what is best for the interest of the child" and not on the needs or desires of the parents. Roussel v. State, 274 A.2d 909, 925-26 (Me.1971) (internal quotation marks and emphasis omitted) (recognizing that the court's equity jurisdiction authorized it to entertain a custody claim by a child's former foster parents). The now familiar "best interest of the child" standard, codified in Maine beginning in 1984,⁹ stands as the cornerstone of the parens patriae doctrine. The standard is currently codified in section 1653(3)¹⁰ and is expressed as a series of separate but related factors.¹¹ The standard, as codified, embodies the same parens patriae authority in judicial proceedings as extant under common law.¹² We have previously recognized that as a corollary of a court's equitable jurisdiction to determine a child's best interest and award parental rights and responsibilities, it may, in limited circumstances, entertain and award of parental rights and responsibilities to a de facto parent. Stitham, 2001 ME 52, ¶ 17,768 A.2d at 603; Merchant v. Bussell, 139 Me. 118, 119-24, 27 A.2d 816, 817-19 (1942) (affirming the denial of a writ of habeas corpus brought by a father against...