Smith v. Gordon, 94, 2008.

• Decision Date: 03 February 2009
• Docket Number: No. 94, 2008.,94, 2008.
• Citation: Smith v. Gordon, 968 A.2d 1 (Del. 2009)
• Court: Supreme Court of Delaware
• Parties: Lacey M. SMITH, Respondent Below, Appellant, v. Charlene M. GORDON, Petitioner Below, Appellee.

968 A.2d 1

Lacey M. SMITH, Respondent Below, Appellant, v.Charlene M. GORDON, Petitioner Below, Appellee.

No. 94, 2008.

Supreme Court of Delaware.

Submitted: November 5, 2008.

Decided: February 3, 2009.

Reargument Denied March 4, 2009.

Court Below—Family Court of the State of Delaware, in and for New Castle County, Pet.No. 04-20625.

Upon appeal from the Family Court.

REVERSED and REMANDED.

Michael P. Kelly, Esquire(argued), and Daniel M. Silver, Esquire, McCarter & English, LLP, Wilmington, Delaware, for appellant.

Christine K. Demsey, Esquire, Wilmington, Delaware, for appellee.

Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.

HOLLAND, Justice.

The respondent-appellant, Lacey M. Smith("Smith"),¹ appeals from a final judgment entered by the Family Court.The Family Court held that the petitioner-appellee, Charlene M. Gordon("Gordon"), had standing as a parent to petition for custody of Smith's adopted daughter, A.N.S.² Gordon argued that she is a legal parent under the Uniform Parentage Act of Delaware ("DUPA") and that she is also a de facto parent.The Family Court concluded that, although Gordon did not qualify as a legal parent of the child under the DUPA, Gordon was a de facto parent and entitled to the same status as a legal parent for purposes of the standing required to file a petition for custody.The Family Court then granted the parties joint legal and physical custody of A.N.S.³

In this appeal, Smith argues that the Family Court erred when it held that a de facto parent has standing as a parent to petition for child custody under title 13, section 721(a) of the Delaware Code.⁴She also argues that, even if Gordon did have standing as a de facto parent to petition for custody, the Family Court erred when it granted Gordon joint custody because Smith did not consent to Gordon forming a relationship with the child.Gordon did not file a cross-appeal from the Family Court's holding that Gordon was not a legal parent under the DUPA.

We have concluded that a de facto parent does not have standing as a parent to file a petition for custody under title 13 section 721(a).⁵Therefore, the judgment of the Family Court must be reversed.

Facts

Gordon and Smith are two women who met on August 23, 1994, and became involved in a romantic relationship.Gordon moved into Smith's home in February 1995 and lived there until May 2, 2004.On various occasions, the parties met with a financial advisor.They discussed the possibility of executing joint wills with an attorney, but never did so.They were beneficiaries of one another's life insurance policies.⁶In 2004, they opened a joint account to process their joint bills.

Smith and Gordon did not have a commitment ceremony, but were recognized by friends and family as a long-term committed couple.They celebrated August 23 as their anniversary date.Early in their relationship, they briefly discussed having children, but serious conversation on the subject was deferred for several years.

After Smith and Gordon had been together for five years, they felt they had established a "strong relationship" and wanted to have a baby.After failed attempts for Smith to have a child via artificial insemination ("AI") and in vitro fertilization ("IVF"), the couple decided to adopt a child from a foreign country.Because the law of Kazakhstan did not permit two women to adopt the same child, they decided that Smith would be the adoptive parent.Gordon participated in the adoption process and accompanied Smith to Kazakhstan for the adoption in March 2003, but only Smith legally adopted the child, A.N.S.

Gordon took paid adoption leave from her employer and stayed home with A.N.S. for nearly two months.When Gordon's leave ended, she returned to work and Smith began to work from home so that she could stay home with A.N.S. Gordon enrolled A.N.S. as her dependent under the employee benefit plan so that A.N.S. would have medical, dental and vision coverage as well as spending accounts for health care and dependent care.The parties shared the expenses to care for and support A.N.S.

In June 2003, Smith and Gordon met with an attorney to discuss Gordon adopting A.N.S.They left the meeting with the understanding that Gordon would have to care for the child for one year in order for the Family Court to permit the adoption.⁷Gordon did not pursue formal adoption after she had lived with A.N.S. for more than one year.

The testimony regarding the termination of Smith's and Gordon's relationship is disputed.There is no dispute, however, that on May 2, 2004, Smith and Gordon broke up, and Gordon moved out of the house at Smith's request.Smith permitted Gordon to see A.N.S. periodically until June 6, 2004.

Procedural History

On June 22, 2004, Gordon filed a petition for custody of A.N.S. in the Family Court.In that petition, she alleged that she and Smith intended that both would function as the parents of an adopted child and understood that only one person could initially adopt the child.She further alleged that the parties anticipated that Gordon would become a second adoptive parent, that Gordon was a co-parent of A.N.S., and that A.N.S. now calls Gordon "Mommy."

On July 6, 2004, Gordon filed a motion for a temporary visitation order.Smith filed a motion to dismiss on the same day.Gordon had no contact with A.N.S. from June 6, 2004, until August 13, 2004, when the parties stipulated to a temporary consent visitation order permitting Gordon visitation without prejudice to Smith's motion to dismiss the custody petition.

On July 22, 2005, Gordon filed a motion to amend her petition for custody, requesting permission to include a request for a determination of parentage under the DUPA in addition to her assertion of her right to seek custody/visitation as a de facto parent.In a response filed August 4, 2005, Smith denied that Gordon had standing to bring an action for adjudication under the DUPA because Gordon lacks a biological tie to A.N.S.On September 6, 2005, the Family Court granted Gordon's motion to amend her petition to include a determination of parentage.⁸

The Family Court understood Gordon's position to consist of two arguments, of which one was made in the alternative.Gordon argued that she is a legal parent under the provisions of the DUPA.⁹She claimed that she not only meets the requirements of several statutory provisions but also is a "de facto parent," and that this status should result in the Family Court adjudicating her as a parent under the DUPA.In the alternative, Gordon argued that she is a de facto parent of A.N.S. and as such has standing under Delaware law to file a petition for custody in the Family Court.

After three and a half days of hearings in January and March 2006 and oral arguments on March 24, 2006, the Family Court issued its decision and order on June 27, 2006.The Family Court determined that Gordon had standing to petition for custody as a de facto parent and denied Smith's motion to dismiss.The Family Court found that for the purpose of section 721(a), a "parent" is not restricted to an individual who is a biological or adoptive parent, or who has established a legal parent-child relationship under the DUPA but also includes an individual who has established a relationship with a child as a de facto parent.¹⁰On March 30, 2007, the Family Court granted Gordon joint legal and physical custody of A.N.S.¹¹

Standard of Review

Upon appeal from the Family Court, this Court reviews the facts and the law, as well as the inferences and deductions made by the Family Court judge.¹²Findings of fact will not be disturbed unless they are clearly wrong and justice requires that they be overturned.¹³If the Family Court applied the law correctly, the standard of review is abuse of discretion.¹⁴Errors of law are reviewed de novo.¹⁵

Custody Petition Requires Parent Status

Title 13, section 721 of the Delaware Code governs child custody proceedings in Delaware.¹⁶Section 721(a) relevantly provides: "A child custody proceeding is commenced in the Family Court of the State ... by a parent filing a petition seeking custody of the child."¹⁷Custody disputes between the parents of a child are determined in accord with the best interests of the child standard.¹⁸

Someone who is not a parent may petition for and be awarded custody only if the child is dependent or neglected and the Family Court determines that it is in the child's best interests not to be placed in the custody of the parent.¹⁹Gordon does not contend that A.N.S. is dependent or neglected.Therefore, Gordon's standing to petition for custody of A.N.S. depends on Gordon's status as a parent.

Determination of Parentage

There is no definition of parent in Delaware's child custody statute.²⁰To determine Gordon's parental status, the Family Court looked to the DUPA²¹ because it "applies to determinations of parentage in this State."²²The DUPA defines "parent" as "an individual who has established a parent-child relationship."²³A "parent-child relationship" is "the legal relationship between a child and a parent of the child."²⁴The DUPA provides that a parent-child relationship may be established as follows:

(a)The mother-child relationship is established between a woman and a child by:

(1) The woman's having given birth to the child;

(2) An adjudication of the woman's maternity; or

(3) Adoption of the child by the woman.

(b)The father-child relationship is established between a man and a child by:

(1) An unrebutted presumption of the man's paternity of the child [];

(2) An effective acknowledgement of paternity by the man ... unless the acknowledgement has been rescinded or successfully challenged;

(3) An adjudication of the man's paternity;

(4) Adoption of the child by the man; or

(5) The man's having consented to an assisted reproduction by a woman ... which resulted in the birth of the...