Jane Doe v. Jane Doe

• Decision Date: 07 June 2017
• Docket Number: Docket No. 44419
• Citation: 162 Idaho 254,395 P.3d 1287
• Court: Idaho Supreme Court
• Parties: Jane DOE (2016-34), Petitioner-Respondent-Cross Appellant, v. Jane DOE I, Respondent-Appellant-Cross Respondent.

162 Idaho 254

395 P.3d 1287

Jane DOE (2016-34), Petitioner-Respondent-Cross Appellant,

v.Jane DOE I, Respondent-Appellant-Cross Respondent.

Docket No. 44419

Supreme Court of Idaho, Boise, January 2017 Term.

Filed: June 7, 2017

Cosho Humphrey LLP, Boise, for appellant. Stanley Welsh argued.

The Law Offices of J. Scott Escujuri, PLLC, Boise; Emily Haan, San Francisco, CA; Ferguson Durham, PLLC, Boise, for respondent. Emily Haan argued.

BRODY, Justice.

This case requires us to resolve a custody dispute between Jane Doe I, Child's natural mother, and Jane Doe, the natural mother's former partner. During the course of Mother and Partner's relationship, Mother conceived a child via artificial insemination. After the parties separated, Partner filed a petition to establish parentage, custody and visitation with Child. Partner advanced two legal arguments to support her petition. First, she argued this Court's decision in Stockwell v. Stockwell , 116 Idaho 297, 775 P.2d 611 (1989), provides an independent cause of action by which the court may grant custody to Partner. Second, she argues that she should be deemed a parent under Idaho Code section 39-5405, Idaho's artificial insemination statute, because she consented to the artificial insemination. As part of this argument, Partner contends that Idaho's artificial insemination statute violates Child's rights and her rights under the Equal Protection Clause of the United States Constitution by discriminating against children born outside of marriage. The magistrate court denied Partner's claim for parentage, but granted her visitation rights under Stockwell . Mother and Partner cross-appealed the magistrate court's decision.

I.FACTUAL AND PROCEDURAL BACKGROUND

Mother and Partner were involved in a committed relationship from 2006 until 2012. The two did not marry because Mother did not want the legal commitment to Partner. Although not married, Mother and Partner jointly agreed to start a family using an anonymous sperm donor. Mother planned to have a child regardless of whether Partner participated, and Mother wanted Child to be biologically related to her.

Partner was involved with the artificial insemination process. Before Child's birth, Mother and Partner consulted with an attorney regarding Partner adopting Child, but they were discouraged from adoption proceedings because the attorney believed that same-sex couples were prohibited from pursuing adoptions, although they were instructed that no law exists prohibiting same-sex adoptions. This consultation took place before this Court's decision in In re Adoption of Doe , 156 Idaho 345, 326 P.3d 347 (2014), wherein we ruled that Idaho's adoption statute does not prohibit an unmarried woman from adopting her domestic partner's children. Mother and Partner did not pursue adoption.

Throughout the pregnancy Partner attended prenatal appointments and was present during the birth. From February 2010 until June 2012, Mother and Partner coordinated their work schedules to care for Child and lived as a family. Mother and Partner's relationship deteriorated in 2012, and Partner moved out of the home. Partner did not attempt to have custody of Child, or take her with her when she moved out. Throughout the summer of 2012, Partner cared for Child when Mother was at work. Gradually, the time Partner spent caring for Child decreased. In January 2015, Mother prohibited Partner from contacting Child and rejected Partner's financial support. Mother told Partner that Mother was the biological parent, and that Partner had no legal rights to Child.

Partner filed a Petition for Adoption, Guardianship, and Visitation in the magistrate court. Partner dismissed her adoption claim because Mother would not consent to it. Partner filed an Amended Petition to Establish Parentage, De Facto Parentage, and Custody and Visitation. Mother filed a motion to dismiss. The magistrate court dismissed the claim involving the parentage claim under Idaho's artificial insemination statute, but allowed the independent Stockwell claim for custody to proceed to trial. After the trial, the magistrate court granted Mother sole legal custody and primary physical custody of Child. It also granted Partner visitation rights. The magistrate court stayed the judgment, kept a temporary visitation order in place, and granted permission to seek an expedited appeal of the judgment to this Court. This Court granted the parties' expedited cross-appeals.

II.ISSUES PRESENTED ON APPEAL

1. Whether the magistrate court erred in construing Stockwell to create a cause of action for a non-parent seeking custodial rights to a minor child.

2. Whether the magistrate court erred in dismissing Jane Doe's claim that she is a legal parent pursuant to Idaho's artificial insemination statute.

III.STANDARD OF REVIEW

"This [C]ourt exercises free review over the lower court's conclusions of law." Barry v. Pac. W. Constr., Inc. , 140 Idaho 827, 831, 103 P.3d 440, 444 (2004). " ‘Jurisdictional issues, such as standing, are questions of law,’ over which this Court exercises free review." In re Adoption of Doe , 156 Idaho 345, 348, 326 P.3d 347, 350 (2014) (quoting Martin v. Camas Cty. ex rel. Bd. Comm'rs , 150 Idaho 508, 512, 248 P.3d 1243, 1247 (2011) ). This Court also "exercises free review when interpreting the meaning of a statute." Id.

IV.ANALYSIS

A. The Stockwell decision does not create an independent cause of action for a nonparent seeking custodial rights to a minor child.

Partner filed what has been dubbed as a " Stockwell petition" based on this Court's decision in Stockwell v. Stockwell , 116 Idaho 297, 775 P.2d 611 (1989). Partner argues that Stockwell created a common law cause of action enabling non-parents (Partner uses the term "de facto parent") to seek custody of children. Mother contends that Partner's Stockwell petition is unprecedented, and, if granted, will open the door to third party custody claims outside the statutory frameworks passed by the Idaho legislature. We agree with Mother, and find that the magistrate court erred when it granted Partner visitation rights.

Stockwell involved a complicated custody dispute that arose after a divorce. Prior to the Stockwell's wedding, Patricia Stockwell gave birth to a child named Amber. 116 Idaho at 298, 775 P.2d at 612. Dan Stockwell was not the biological father of the child, even though his name was placed on her birth certificate. Id . During the course of the marriage, Dan established a parental relationship with Amber. Id . He was the only father she ever knew. Id. at 300, 775 P.2d at 614. The Stockwells divorced when Amber was about nine years old. By that time, the Stockwells also had another child. During the divorce, the Stockwells agreed to place both girls under the guardianship of Dan's parents. Id. at 298, 775 P.2d at 612. The divorce decree did not otherwise address the care, custody, or support of the children. Id . About a year later, Patricia moved to terminate the grandparents' guardianship. Id. The magistrate court granted the motion to terminate and awarded Patricia custody of both children. Id . Dan was granted visitation rights, but when he pressed for those rights, Patricia fled Idaho with the girls and her new husband. Id . at 298–99, 775 P.2d at 612–13. After Patricia fled the state, the magistrate court entered another order finding that Patricia's conduct warranted a change of custody. Id . at 299, 775 P.2d at 613. The magistrate court awarded custody of the biological child to Dan, but declined to award him custody of Amber. Id . The magistrate court did, however, award Dan visitation rights. Amber stayed in Dan's custody while he appealed the decision. Id .

The Stockwell case made its way to this Court. This Court held: "[i]n custody disputes between a ‘non-parent’ (i.e., an individual who is neither legal nor natural parent) and a natural parent, Idaho courts apply a presumption that a natural parent should have custody as opposed to other lineal or collateral relatives or interested parties." Id. The Court held further:

This presumption operates to preclude consideration of the best interests of the child unless the nonparent demonstrates either that the natural parent has abandoned the child, that the natural parent is unfit or that the child has been in the nonparent's custody for an appreciable period of time.

Id. If the child has been in the non-parent's custody for an "appreciable period of time," then the court must decide what placement is in the best interests of the child. For Amber Stockwell, it meant being placed with her step-father.

This Court's decision in Stockwell is not a key to the courthouse for non-parents seeking custody of minor children. The Stockwell decision was made in the context of divorce and guardianship proceedings and cannot be used as a toe-hold for an independent custody action brought by a non-parent. This Court understands that family structures are changing, but it is not the role of this Court to create new legal relations. That is the business of the Idaho legislature.

This Court recently explained this point in a case involving a surrogate mother and "intended parents." In the Matter of Doe , 160 Idaho 360, 372 P.3d 1106 (2016). In Doe , a surrogate mother and her husband filed a declaratory judgment action to have the "intended parents" with whom she contracted declared as the legal parents of the child she carried. They brought the action so that the intended parents' names could be placed on the birth certificate and no adoption proceeding would be required. This Court declined to grant the declaration, holding that Idaho's declaratory judgment action statute does not give the Court the power to create new legal relationships. This Court explained:

Although the parties are correct that as a procedural matter Idaho Code section 10-1201, et. seq. does allow courts to declare legal relations, that power is inherently limited to the interpretation of previously established

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