In re Parentage of L.B.

CourtUnited States State Supreme Court of Washington
Citation155 Wn.2d 679,122 P.3d 161
Decision Date03 November 2005
Docket NumberNo. 75626-1.,75626-1.
PartiesIn re the Matter of the PARENTAGE OF L.B. Sue Ellen ("Mian") CARVIN, Respondent, v. Page Britain, Petitioner.
122 P.3d 161
155 Wn.2d 679
In re the Matter of the PARENTAGE OF L.B.
Sue Ellen ("Mian") CARVIN, Respondent,
Page Britain, Petitioner.
No. 75626-1.
Supreme Court of Washington, En Banc.
Argued February 15, 2005.
Decided November 3, 2005.

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Mr. Brian Haig Krikorian, Ms. Erica Krikorian, Seattle, for Petitioner/Appellant.

Ms. Patricia S. Novotny, Attorney at Law, Ms. Janet Marie Helson, Skellenger Bender, Ms. Nancy Lynn Sapiro, Northwest Women's Law Center, Seattle, for Appellee/Respondent.

Lorraine Alicia Rimson, Seattle, for Amicus Curiae, Amara Parenting and Adoption Services, Children of Lesbians & Gays, Wash. State Court Appointed Special.

H. Michael Fields, Seattle, for Amicus Curiae American Academy of Matrimonial Lawyers.

Aaron Hugh Caplan, Seattle, Leslie Cooper, New York City, for Amicus Curiae American Civil Liberties Union of Wash., Lesbian & Gay Rights Project of the ACLU.

Katherine Hunt Federle, Angela Lloyd, Columbus, OH, for Amicus Curiae Justice for Children Project.

Lisa Kay Barton, O'Brien Law Firm PLLP, Issaquah, for Amicus Curiae Justice for Children Project.

Jamie D. Pedersen, Laura Kristine Clinton, Kristin Johanna Borass, Preston Gates & Ellis LLP, Seattle, Shannon Minter, Courtney Joslin, National Center for Lesbian Rights, San Francisco, CA, Jennifer C. Pizer, Lambda Legal Defense & Education Fund, Los Angeles, CA, for Amicus Curiae National Center for Lesbian Rights & Children of Lesbians & Gays.

Matthew Jolly, Bellevue, for Guardian ad Litem Matthew Jolly.


In 1989, after dating for several months, Page Britain and Sue Ellen ("Mian") Carvin began living together as intimates. Five years later, they decided to add a child to their relationship and together artificially inseminated Britain with semen donated by a male friend. On May 10, 1995, Britain gave birth to a baby girl, L.B., and the partners began actively coparenting her, both taking a committed, active, and loving role in her nurturing and upbringing. Then, when L.B. was six years old, Britain and Carvin ended their relationship and an acrimonious spate of litigation over access to L.B. ensued.

We must now determine whether Sue Ellen Carvin, who is neither a biological nor adoptive parent, has standing under Washington law to petition our courts for a determination of coparentage with regard to L.B. We conclude that she does. We are also asked to decide, in the alternative, whether Carvin has standing to assert rights to visitation with L.B. under Washington statute. We conclude that she does not.

The equitable power of the courts to adjudicate relationships between children and families is well recognized, and our legislature has evinced no intent to preclude the application of an equitable remedy in circumstances such as these. Accordingly, we now hold, as did the Court of Appeals, that Washington's common law recognizes the status of de facto parents and grants them standing to petition for a determination of the rights and responsibilities that accompany legal parentage in this state. Therefore, Carvin should have the opportunity to present evidence to the court sufficient to establish her status as a de facto parent of L.B. and if successful to obtain the rights and responsibilities attendant to parentage. However, because we have previously held Washington's third party visitation statutes to be unconstitutional and thereby inoperative, we reverse the Court of Appeals' alternative holding that Carvin may petition for visitation pursuant to RCW 26.10.160(3).

Facts and Procedural History

Carvin and Britain became romantically involved in a same-sex relationship in June

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1989 and cohabitated from September 1989 until February 2001. In 1994 the couple jointly decided to conceive and raise a child. A close male friend of theirs, John Auseth, agreed to donate sperm to assist in their efforts. The parties conducted the artificial insemination in their home, with Carvin personally inseminating Britain with the donor sperm.1 Carvin accompanied Britain to her prenatal appointments, and they participated together in prenatal birthing classes. On May 10, 1995, Carvin was present at and assisted in the birth of L.B. When she was born, the parties gave L.B. family names representing both Carvin's and Britain's family. In L.B.'s baby book, Britain listed herself under "mother" and altered "father" to also read "mother," listing Carvin. Clerk's Papers (CP) at 112-13.

For the first six years of L.B.'s life, Carvin, Britain, and L.B. lived together as a family unit and held themselves out to the public as a family. Carvin and Britain shared parenting responsibilities, with Carvin actively involved in L.B.'s parenting, including discipline decisions, day care and schooling decisions, and medical care decisions. Both parties were named as "parents" on L.B.'s kindergarten and first grade records. While the parties now dispute the nature of their relationship and the extent of Carvin's role as a "mother," as the Court of Appeals notes, "the record reflects that Carvin provided much of the child's `mothering' during the first six years of her life." In re Parentage of L.B., 121 Wash.App. 460, 467, 89 P.3d 271 (2004). This conclusion is supported by the fact that L.B., in her interactions with the two women, referred to Carvin as "`mama'" and Britain as "`mommy.'" Id.2

L.B. was nearly six years old when the parties ended their relationship. After initially sharing custody and parenting responsibilities, Britain eventually took measures to limit Carvin's contact with L.B. and in the spring of 2002, unilaterally terminated all of Carvin's contact with L.B. L.B. was then seven years old.

Seeking to continue her relationship with L.B., on November 15, 2002, Carvin filed a petition for the establishment of parentage in King County Superior Court.3 In it she sought, in relevant part, (1) that she be declared the legal parent of L.B. pursuant to the Uniform Parentage Act (UPA), chapter 26.26 RCW, (2) that she be declared a parent by equitable estoppel or that she be recognized as a de facto parent, and finally (3) that she be allowed statutory third party visitation rights.

On December 13, 2002, the family court commissioner dismissed Carvin's petition based on a determination that Carvin lacked standing under the UPA and that the UPA does not grant standing to "psychological" parents. CP at 298. The commissioner further declined to order visitation pursuant to chapter 26.10 RCW. Carvin moved for a revision of the commissioner's ruling. On revision, the trial judge found that "there is a substantial relationship between Petitioner Carvin and the child in this case" and that "both parties care deeply" for the child. Id. at 311. He further found neither Britain nor Carvin to be "unfit." Id. at 312. Finally, he

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found that "[t]here is a substantial showing in the record that terminating visitation between [Carvin] and the child harmed the child . . . ." Id. However, he "reluctantly" affirmed the commissioner's ruling on all three grounds, holding that Carvin lacked standing under the UPA and as a de facto parent, and finally that if the third party visitation statute survived In re Custody of Smith, 137 Wash.2d 1, 969 P.2d 21 (1998), aff'd on other grounds sub nom. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) and Troxel, there must be a prerequisite showing of parental unfitness in order to grant visitation rights and that none had been shown. Id. at 312-14.

Carvin appealed. The Court of Appeals agreed that Carvin lacked standing under the UPA but reversed the superior court on the other two grounds, determining that the legislature's omission of any language addressing the legal rights of parties to familial relationships such as the one presented here does not imply the complete denial of remedy but rather leaves the matter to be resolved by common law. In re Parentage of L.B., 121 Wash.App. at 475-76, 89 P.3d 271. Then, relying on the persuasive authority of other state courts that have recognized the common law rights of de facto parents, the court held that a common law claim of de facto or psychological parentage exists in Washington separate and distinct from the parameters of the UPA and that such a claim is not an unconstitutional infringement on the parental rights of fit biological parents. Id. at 485, 89 P.3d 271. The Court of Appeals held that a de facto parent may prove the existence of a parent-child relationship by presenting evidence sufficient to prove:

(1) the natural or legal parent consented to and fostered the parent-like relationship; (2) the petitioner and the child lived together in the same household; (3) the petitioner assumed obligations of parenthood without expectation of financial compensation; and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Id. at 487, 89 P.3d 271. Finally, the Court of Appeals reinstated Carvin's alternative petition for third party visitation pursuant to RCW 26.10.160(3). Id. at 488, 89 P.3d 271. The court distinguished this case from grandparent visitation in Troxel and held that Carvin "does not need to prove that Britain is unfit in the classic sense, but only that it is detrimental to the child to sever the very parent-child relationship that Britain first consented to and fostered." Id. at 489, 89 P.3d 271.

Britain petitioned this court for review, which we granted.4


In the face of advancing technologies and evolving notions of what comprises a family unit, this case causes us to confront the manner in which our state, through its statutory scheme and common law principles, defines the terms "parents" and "families." During the first half of Washington's statehood, determinations of the conflicting rights of persons in family...

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