E.N.O. v. L.M.M.

• Decision Date: 29 June 1999
• Citation: 429 Mass. 824,711 N.E.2d 886
• Parties: E.N.O. v. L.M.M.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 886

711 N.E.2d 886

429 Mass. 824

E.N.O. v. L.M.M.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 4, 1999.

Decided June 29, 1999.

Elaine M. Epstein & Gary Owen Todd, Boston (Rosemarie Haigazian, Edgartown, with them) for the defendant.

E. Oliver Fowlkes, Boston, & Mary L. Bonauto, Portland, ME (Honora Kaplan, Boston, with them) for the plaintiff.

Bettina Borders, New Bedford (Dana Alan Curhan, Boston, with her) for the child.

Gretchen Van Ness, Boston, & Pauline Quirion, Cambridge, for Greater Boston Legal Services & others, amici curiae, submitted a brief.

Present: WILKINS, C.J., ABRAMS, LYNCH, FRIED, MARSHALL, & IRELAND, JJ.

ABRAMS, J.

A single justice of the Appeals Court allowed the defendant's, L.M.M.'s, petition pursuant to G.L. c. 231, § 118, to vacate a temporary visitation order issued by the Probate Court, reasoning that C.M. v. P.R., 420 Mass. 220, 649 N.E.2d 154 (1995), controlled. The plaintiff, E.N.O., petitioned a single justice of this court, pursuant to G.L. c. 211, § 3, to reinstate visitation pending a trial on the merits. Distinguishing C.M., the single justice allowed the request. The defendant then filed this appeal. We affirm.

The issue, one of first impression, is whether the facts warrant the Probate Court's exercise of jurisdiction to grant visitation between a child and the child's "de facto" parent. ¹ Because visitation was in the best interests of the child, we hold that the single justice did not abuse his discretion in reinstating visitation.

The facts are as follows. The parties are two women who shared a committed, monogamous relationship for thirteen years. During their relationship, they availed themselves of every legal mechanism for signifying themselves life partners. From the beginning of their relationship, the plaintiff and the defendant planned to become parents. In 1991, they elected to do so biologically, deciding that the defendant should try to become pregnant through artificial insemination. Before the insemination process began, the defendant and the plaintiff both attended workshops to learn about artificial insemination and parenting issues. The plaintiff attended all the insemination sessions and participated in all medical decisions.

In 1994, while the couple was living in Maryland, the defendant became pregnant. Throughout the defendant's complicated pregnancy, the plaintiff cared for her. The plaintiff also accompanied the defendant on every visit with her doctors. When the child was born in February, 1995, the plaintiff acted as the defendant's birthing coach and cut the child's umbilical cord. The plaintiff stayed overnight at the hospital. Hospital staff treated her as a mother, giving her a bracelet denoting her a parent of "Baby O.M." The parties sent out birth announcements naming them both as parents. The child's last name consists of the parties' last names.

Before the child was born, and again afterward, the parties executed a coparenting agreement in which they expressly stated their intent to coparent a child. The agreement also expressed the parties' intent that the plaintiff retain her parental status even if the defendant and the plaintiff were to separate. The defendant executed documents authorizing the plaintiff to care for the child as a parent. ²

After the child was born, the plaintiff assumed most of the financial responsibility for the family. Later, for a period of approximately seven months, the plaintiff also assumed primary care for the child because the defendant was experiencing medical problems. The child calls the plaintiff "Mommy" and the defendant "Mama." He tells people that he has two mothers.

In September, 1997, the parties moved to Massachusetts. In April, 1998, the plaintiff called an attorney about proceeding with joint adoption of the child. Thereafter the parties' relationship began to deteriorate. The couple separated in May, 1998. The defendant then denied the plaintiff any access to the child.

In June, 1998, the plaintiff filed a complaint seeking specific performance of the parties' agreement to allow the plaintiff to adopt the child and assume joint custody. She also sought visitation with the child as well as a winding down of her financial affairs with the defendant. The defendant's motion to dismiss the action was denied.

After a hearing, a Probate Court judge ordered temporary visitation, pending trial, between the plaintiff and the child. The judge applied the "best interests of the child" standard, noting that "children born to parents who are not married to each other are to be treated in the same manner as all other children." See G.L. c. 209C, § 1. The judge viewed several facts as significant. He found that the decision to have the child was made jointly by the plaintiff and the defendant. After the child's birth, the plaintiff had daily contact with the child and "acted in the capacity [of] his other parent in all aspects of his life." The judge further observed that the plaintiff and the defendant "at all times referred to each other as [the child's] parents." In addition, the judge stated, without further description, that the plaintiff was "listed on all contracts and applications as [the child's] parent."

The judge also relied on the report of the guardian ad litem (GAL). The judge specifically cited the GAL's finding that the plaintiff was an active parent and appreciative of the child's needs. The GAL stated that "both mothers were clearly involved in [the child's] upbringing." From all these facts, the judge concluded that temporary visitation was in the child's best interests.

1. Standard of review. General Laws c. 211, § 3, confers on this court the power of "general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided." "We shall reverse a decision of a single justice only when there is clear error of law or an abuse of discretion." Department of Mental Retardation v. Kendrew, 418 Mass. 50, 53, 634 N.E.2d 109 (1994). We conclude that the single justice was correct in his determination that, on these facts, the Probate Court judge properly exercised his jurisdiction.

2. Discussion. The heart of the defendant's argument is that the Probate Court lacked jurisdiction to order temporary visitation. The defendant looks first for statutory authority and finds no statute expressly permitting the order of visitation privileges to one who stands in a parent-like position. However, the Legislature has conferred equity jurisdiction on the Probate Court, and that is the source of the Probate Court's authority in this matter. ³ General Laws c. 215, § 6, provides: "The probate and family court department shall have original and concurrent jurisdiction with the supreme judicial court and the superior court department of all cases and matters of equity cognizable under the general principles of equity jurisprudence and, with reference thereto, shall be courts of general equity jurisdiction...."

The Probate Court's equity jurisdiction is broad, extending to the right to authorize visitation with a child. This is because the Probate Court's equity jurisdiction encompasses "the persons and estates of infants." See Gardner v. Rothman, 370 Mass. 79, 80, 345 N.E.2d 370 (1976) (Probate Court has jurisdiction over claim of father of illegitimate child to visitation because the court's equity jurisdiction "extends to the persons and estates of infants, and is not restricted to legitimate children"). The court's duty as parens patriae necessitates that its equitable powers extend to protecting the best interests of children in actions before the court, even if the Legislature has not determined what the best interests require in a particular situation. ⁴ "In every case in which a court order has the effect of disrupting a relationship between a child and a parent, the question surely will arise whether it is in the child's best interest to maintain contact with that adult." Youmans v. Ramos, 429 Mass. 774, 783, 711 N.E.2d 165 (1999). ⁵ See Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 702, 703, 467 N.E.2d 861 (1984) (postadoption visitation by child's mother was properly evaluated by examining child's best interests); Koelle v. Zwiren, 284 Ill.App.3d 778, 784, 220 Ill.Dec. 51, 672 N.E.2d 868 (1996) (best interests test controls claim of visitation by biological stranger to child); Zack v. Fiebert, 235 N.J.Super. 424, 432, 563 A.2d 58 (1989) (same); Roberts v. Ward, 126 N.H. 388, 392, 493 A.2d 478 (1985) (court may use its parens patriae power to decide whether welfare of child warrants court-ordered visitation with grandparents). But see Enos v. Correia, 38 Mass.App.Ct. 318, 323 n. 11, 647 N.E.2d 1215 (1995) (limiting Probate Court's equity jurisprudence to cases in which the subject matter of the controversy is one recognized by the courts at common law). A judge, therefore, should evaluate a child's best interests in light of the specific circumstances.

We acknowledge that the "best interests" standard is somewhat amorphous. We must ask what facts the judge may take into account in determining where a child's best interests lie. Here, the judge emphasized the plaintiff's role as a parent of the child. It is our opinion that he was correct to consider the child's nontraditional family.

A child may be a member of a nontraditional family in which he is parented by a legal parent and a de facto parent. A de facto parent is one who has no biological relation to the child, but has participated in the child's life as a member of the child's family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent. See Youmans, supra at 776 & n. 3, 711 N.E.2d 165 (1999); ALI Principles of the Law of Family Dissolution §...