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North Carolina Appellate Court, Lesbians, and the "Psychological Parent" Doctrine:

Mason v. Dwinnell, decided yesterday, upheld a trial court's decision that awarded joint custody of a child to the biological mother (Dwinnell) and the mother's lesbian ex-partner (Mason). The child had been conceived when Mason and Dwinnell were a couple, and was raised by Mason and Dwinnell together until the two broke up when the child was four; the two had then, by mutual agreement, had joint custody until the child was seven.

The court stressed that "[a]lthough this appeal arises in the context of a same-sex domestic partnership, it involves only the constitutional standards applicable to all custody disputes between legal parents and third parties." And the court reasoned -- applying what looks like the "psychological parent" doctrine that quite a few courts have applied in recent years -- that because Dwinnell voluntarily let Mason help raise the child for several years, and let the child treat Mason as a parent, Dwinnell voluntarily surrendered her constitutional right to exclusive control over the child. The proper standard was thus the "best interests" standard applicable to disputes between parents; and the trial court's decision that joint custody was in the child's best interests was not an abuse of discretion.

I haven't thought much about the psychological parent doctrine, but I'm inclined to think that it is sound. And if it's sound in general -- for instance, when the psychological parent is a stepparent who raised the child from infancy (with the other biological parent out of the picture) -- then it's equally sound for same-sex relationships. Whatever one might say about whether in the abstract it's better for a child to be raised by a woman and a man or by two women, a child who has formed deep emotional bonds with two women deserves the same protection for those bonds as does a child who has formed such bonds with a woman and a man.

Hans Bader (mail):
Although I can sympathize with a "psychological" parent, I think the doctrine sets a worrisome precedent, since with rights come responsibilities -- indeed, in family law, responsibilities often outstrip (or even exist without) corresponding rights.

The psychological parent doctrine could be turned on its head to allow a custodial parent to double-dip in terms of child support, forcing both the biological father and the "psychological" (step) father to pay for the same kid. (I think forcing both the father and the step-father to pay for the same child actually may happen in Australia, although I'm not sure).

That would discourage stepfathers from providing useful parental functions, lest they be hit up for child support in a subsequent divorce.

That could also push down even further the remarriage rate after divorce. Remarriage rates have already fallen a great deal, undermining the family as an institution.

Keep in mind that it's usually the custodial parent who seeks the divorce, not the non-custodial parent.

One other question: why are all these non-biological same-sex parents getting joint custody, when the biological father usually doesn't get joint custody upon being divorced by his wife, and is often relegated to the role of occasional visitor in the life of the child he fathered? (even though most divorces are no-fault divorces initiated over the father's objections)

Who do fathers, who are the actual biological parent, receive less custody rights than a non-biological parent?

Is there an element of gender bias there?
5.7.2008 7:53pm
Malthus:
And I suppose that you, arguing "best interests of the child," would grant custody to a wolf or a biological father who is also the biological grandfather?

Specious argument!
5.7.2008 8:02pm
ras (mail):
IANAL, but isn't it common-law that a child of the "marriage" is considered a child of each parent, regardless of current or later knowledge of the biological parentage? This decision would seem in accord with that principle, albeit one must first accept gay "marriage" in this instance in order to apply it.

[The quotes around "marriage" are just to emphasize that it's a marriage from the child's pt of view, regardless of its legality or otherwise].

Is this correct?
5.7.2008 8:17pm
Eugene Volokh (www):
Malthus: Wolf custody? I'd have expected this from Gaius Marius or Felix Sulla, but not you.
5.7.2008 8:18pm
Dave N (mail):
Makes sense to me too. If a child has a psychological bond with a loving parental figure, the courts should certainly take that into consideration.

I also wondered if this decision might be in conflict in any way with Troxel v. Granville, 530 U.S. 57 (1991) (the grandparent visitation case). After re-reading Troxel, I concluded that Mason does not conflict in the slightest.
5.7.2008 8:23pm
Daryl Herbert (www):
It sounds like a good doctrine, but there should be some sort of protection from child support payments for the sperm donor.

If a mother and her partner (male or female) claim a close enough relationship to claim psychological parentage of the child, that should be treated, for the purposes of deciding whether/how much child support is owed, as if they were married.

And if the "psychological parent" splits from the mother, s/he should be on the hook for child support, not the sperm donor.
5.7.2008 9:00pm
David Schwartz (mail):
Well, you know what I'm going to say. The issue should not be whether the child's bond is entitled to protection but whether the psychological parent should have parental rights. What's important in a best interests of the child analysis, because it is so inherently subjective, is more who gets to make it than how it is made.

Again, I utterly reject the "best interests of the child" standard for disputes among parents. Parents have the right to *decide* what's in the best interests of the child, absent a showing of abuse or neglect. Having the judge adjudicate on a BIOTCH standard will always rob both parents of that right.

This case in particular points out a more serious problem:

Dwinnell voluntarily let Mason help raise the child for several years, and let the child treat Mason as a parent, Dwinnell voluntarily surrendered her constitutional right to exclusive control over the child.


It's hard to imagine how this can make any sense. If I let someone act as my laywer, have I surrendered my constitutional right to terminate his service? If I choose to go to Catholic church for a few months, have I surrendered my constitutional right to go to a Jewish temple?

Here the court uses the conclusion it already wants based on a BIOTCH standard (protecting the child's relationship) to justify that conclusion by another standard (no violation of parent's rights).

What's next? Babysitter's rights?
5.7.2008 9:17pm
Dave Hardy (mail) (www):
It seems to me there is no good answer to the legal question, and the court's response is as good as any other. Heather Has Two Mommies meets domestic law. The biological father is unknown, and in any event has never acted, since conception, as a parent.
5.7.2008 9:46pm
sum (mail):

I'm not going to do a legal analysis because I don't know enough about the subject, but here's an anecdote:

A close friend of mine lost her biological mother when my friend was a very young child. Soon thereafter, her biological father remarried. His new wife never legally adopted the children from her husband's first marriage.

My friend calls her father's second wife "Mom." As far as the youngest child is concerned, her father's second wife is the only mother that she has ever known. Although legally and biologically she is not their mother, she IS their mother in almost every other real sense of the word, having raised all of the children just as a real mother would.

I have absolutely no idea why my friend's mom never went through the legal formalities of adoption. And, thankfully, her father and his second wife -- who have been married for decades -- seem like a happily married family. But, if some unforeseen event had required a court to decide custody of the children, wouldn't it have been better to look at the reality of the family dynamics instead of the legal formality of who was technically the childrens' parent?

(Also consider the possibility where the husband and his second wife and lived together without ever getting married, but the facts were otherwise as above.)
5.7.2008 9:56pm
ithaqua (mail):
"Whatever one might say about whether in the abstract it's better for a child to be raised by a woman and a man or by two women, a child who has formed deep emotional bonds with two women deserves the same protection for those bonds as does a child who has formed such bonds with a woman and a man."

Rubbish. A child needs a mother *and* a father to grow up healthy and normal. Sick 'bonds' like these are better broken as soon as possible, to minimize the damage and the trauma inflicted on the child. Or would you say that a child who's formed 'deep emotional bonds' with a child molester should remain in the molester's custody, for the sake of protecting those bonds?
5.7.2008 10:17pm
Eugene Volokh (www):
Ithaqua: I missed the part of the record that described how Mason was molesting the child -- or anything remotely approaching that.
5.7.2008 10:40pm
frankcross (mail):
Just found this on a role playing game site:

the average member from the ithaqua cult is rather subdued and pacific, with the odd psychotic

I never figured the guy for average
5.7.2008 10:48pm
David Schwartz (mail):
But, if some unforeseen event had required a court to decide custody of the children, wouldn't it have been better to look at the reality of the family dynamics instead of the legal formality of who was technically the childrens' parent?
I think this gets to the fundamental point and the biggest problem with my own position -- what is the source of parental rights? Does it come from just providing DNA? Is it earned somehow? I wish I had a good answer to that, but I don't.

I generally argue that the source of parental rights is the fact that the child is quite literally the product of the parents' labor. But truthfully, the man doesn't labor all that much.

Does anyone know of any good writings on this issue? I've seen a lot of organizations and articles arguing for primacy of parental rights, but few seem to address this.
5.7.2008 10:48pm
frankcross (mail):
I don't know this area of law at all, but I think there is a good argument for separating parental rights and parental responsibilities. If someone voluntarily takes care of a child, it makes sense to give them rights without necessarily giving them responsibilities. We want to encourage caring for children, so to incentivize it we would want to give right and not discourage it by compelling the assumption of legal responsibilities.

I think it makes sense to limit legal responsibilities to genetic parents but expand rights to encourage caregiving.
5.7.2008 11:47pm
JB:
Common sense says that if a child has bonded with a parental figure, and there is no countervailing interest (like, say, abuse), that bond should be supported, or at least not overthrown, by the law.

The point of striving for two-parent households is not to fill in some bubble, but to provide the child with two adult role models and protectors. If the child has those, the spirit of the law demands that those relationships be cherished.
5.8.2008 12:20am
eric (mail):

Is there an element of gender bias there?


This is family law, of course there is.

To the substance of the Psychological Parent Doctrine. The doctrine can be a good doctrine. David Schwartz makes a great point about not knowing the source of parental rights.

I would argue that the Psychological Parent Doctrine should be absolutely rejected unless one of the parents has no rights to the child under the law. In other words, the other parent has to be unfit or have abandoned the child, found on the record with all benefits of due process, and the court should have to find by clear and convincing evidence that the absence of the phsychological parent would severely harm the child.

Especially in the context of family law, I simply do not trust the courts to apply this doctrine with any regard for the natural rights of biological parents. What happens when you have a good stepfather and a good father who was never married to the mother and, perhaps by the court's own order, has not spent as much time with the child as the stepfather. The courts cannot be trusted to not hit up both mom and dad for child support and give step-father custody. Of course, the step-father is male, so this would probably happen only in the case of a custodial working father and a stay at home step-mom. (Stay at home mothers seem to get the benefit of the doubt that they are not a worthless leech a lot more than stay at home fathers.)

In my view, the step-parent is on notice that the child has two legal parents and in the situation where one parent is unfit or absent, they should take rights to take on the legal rights and responsibilities of a parent if they should choose to do so. If both parents are fit, they should expect that they have no legal rights enforceable in court. Sometimes you simply have to draw a line. Rules are useful, even if they are sometimes arbitrary by some people's standards.
5.8.2008 1:29am
TechieLaw (mail) (www):
David: You're asking the right questions, but the problem is that you're asking the legal realm is trying to come up with an abstract, philosophical solution to a problem with very real-world effects.

Perhaps this is the point behind the BIOTCH standard. There's no one-size-fits-all approach, and a judge must individually evaluate everything. Because judges are human, there will inevitably be mistakes with a subjective approach, but perhaps we're more willing to live with those mistakes than the imposition of an inevitably flawed, discretionless flowchart as applied to human situations.
5.8.2008 1:37am
berlet98 (mail) (www):
I'm in full agreement with the view that, "a child who has formed deep emotional bonds with two women deserves the same protection for those bonds as does a child who has formed such bonds with a woman and a man."

However, without studying the full Mason vs. Dwinnell decision, a quick reading does show that the child in question is a male child and I noted no reference to the biological father. Unless I missed something in my cursory reading, I think "the best interest of the child" is being accorded short shrift and that child is being ill-served since he apparently faces a life shared between two lesbians without benefit of a father or a father-figure.

I can all but guarantee that the poor kid will soon be on Ritalyn and will require psychological counseling in the near future.
5.8.2008 1:56am
eric (mail):
I respectfully disagree with techielaw on the point of the BIOTCH standard (although I like the acronym).

Isn't the BIOTCH standard just the best thing we have to resolve a dispute between two people with equal rights, i.e. two biological parents? Note that some states do not even extend the BIOTCH standard in a contest between a single mother and the father when the child was born out of wedlock or the parent's were not living together because they have a presumption of maternal custody in that case.

Expanding the BIOTCH test beyond the narrow context of biological parent versus biological parent is not wise. The use of higher evidentiary standards in family law is common and helps resolve and prevent disputes. If it was just BIOTCH with regard to everyone who "parents" the child in some way, judicial discretion would be limitless. Of course, this is just theoretical because Troxille prevents a lot of this type of stuff.

I think correct outcome occurred in this case, but that is because there was no second parent and it appears that the child would have been harmed pretty extensively by the absence of the putative second parent. However, that does not mean we should use it lightly.
5.8.2008 2:05am
eric (mail):
berlet98

It was an anonymous sperm donor situation.

I want to see a case where the father is known but it is not disclosed to him that he is the father. Does he have a right to of first refusal to parent? Does concealing a child divest a person of his right to parent?
5.8.2008 2:10am
Hoosier:
Why didn't you entitle this post "Fighting Lesbians in Action!" I thoght we were trying to increase Google hits.
5.8.2008 2:35am
Roger Schlafly (www):
Isn't the BIOTCH standard just the best thing we have to resolve a dispute between two people with equal rights, i.e. two biological parents?
No. The best thing is to divide those rights equally.
5.8.2008 4:10am
ReaderY:
The North Carolina Supreme Court has regularly reversed Court of Appeals decisions on sexual matters, from twenty years ago when the Court of Appeals attempted to abolish heart balm torts and the Supreme Court reinstated them to Its Pulliam vs. Smith holding that a divorced parent's conducting a homosexual lifestyle in the home in front of the children was grounds for awarding custody of the children to the other parent.

The North Carolina Supreme Court has also taken the view that biological parenthood is a constitutional right vs. a vis third parties.

In addition, in upholding the state's sodomy law as applied to activities of minors, the Supreme Court explicitly said that Lawrence v. Texas by its terms applies only to the activities of adults, the the principles animating the state's morality code continue to apply except where prohibited by the U.S. Supreme Court, and that the state continues to have the right to legislate morality whenever children are involved.

These factors suggest the Supreme Court will not adapt the psychological parent doctrine unless compelled to do so by directly applicable U.S. Supreme Court precedent and will reverse the Court of Appeals, as it has done so many times before.
5.8.2008 8:29am
TechieLaw (mail) (www):
eric: Interesting way of looking at it, but I disagree with one point: The purpose is to resolve a dispute involving at least three human beings, not just two potential parents with property to divide.
5.8.2008 9:43am
R Gould-Saltman (mail):
Ras: actually, the presumption of parenthood to married couples is now overwhelmingly statutory, each state ringing changes on the Uniform Parentage Act version, and permitting rebuttal of the presumption by various people, but not others, under varying circumstances, but not others. California, for instance, places a time-limit after date of birth even on challenges to the presumption brought by one of the spouses. I believe that the highest appeals court in Kentucky just affirmed shutting out a proven bio dad from asserting parentage against the claims of a separated, but still-married couple, since he had not, IIRC, established, (or apparently even pled) that the "marital cohabitation" had ended at least ten months prior to birth.


R. Gould-Saltman
Gould-Saltman Law Offices, LLP
818 W. 7th St., Ste. 960
Los Angeles CA 90017
5.8.2008 2:08pm
Hanah Volokh (mail) (www):
I haven't read the opinion, but from what you wrote here, this looks more like a "parent by estoppel" decision than a "psychological parent" one. Someone becomes a parent by estoppel based on actions of the other parent agreeing to co-parent with them and so forth. Psychological parenthood focuses directly on the relationship that has actually developed between the child and the putative psychological parent.
5.8.2008 3:18pm
eric (mail):

The purpose is to resolve a dispute involving at least three human beings, not just two potential parents with property to divide.


Sure, that is true. The child is a person, of course. And the dispute involves three people but the legal is between two people, the parents. I meant that the child, while involved in the dispute, is not a party to the dispute in the way that the parents are.
5.8.2008 3:36pm
eric (mail):
I think Hanah is technically right, but the acts giving rise to an estoppel are often the same as the act giving rise to the parent-child relationship.

The legal effect would be different though because the estoppel has to be asserted to avoid the biological parents fundamental rights?

So maybe you need an estoppel and an attachment between the parent and child?
5.8.2008 3:39pm
mischief (mail):

Common sense says that if a child has bonded with a parental figure, and there is no countervailing interest (like, say, abuse), that bond should be supported, or at least not overthrown, by the law.


Has anyone heard of a case where the "psychological parent" was not, at some point, having sexual relations with the child's actual parent? I haven't. And the legal fiction that having sexual relations with someone can give you a bond to their children does not seem to me to based on sound policy.
5.8.2008 3:55pm
Houston Lawyer:
How would this doctrine apply to a divorced dad whose wife remarried and insisted that the children call step-dad "daddy"? I know a lot of people who are closer to their step-dads than their biological dads. Does step-dad get rights if he divorces mom?

I believe parental rights should be determined by biology or formal adoption. I also question whether this decision violates Troxel.
5.8.2008 4:27pm
Hanah Volokh (mail) (www):
mischief: I think psychological parenthood can develop in a case where a child has lived for a long time with a grandparent or other relative (either with or without the presence of a biological parent) who, presumably, would not be having sex with one of the child's biological parents. In that case, it is unlikely that there would be some kind of agreement that would create parenthood by estoppel, also.
5.8.2008 4:51pm
mischief (mail):
"can develop"? That's nice. Has there ever been a legal case saying so? If the courts de facto require sexual relations, they are declaring that having sex with someone creates a unique bond with the person's child.
5.8.2008 6:09pm
Philistine (mail):

"can develop"? That's nice. Has there ever been a legal case saying so?


You might want to try running a google search on "grandparent 'psychological parent'"

It seems pretty common. Here's one.
5.8.2008 7:25pm
David Schwartz (mail):
I have no objection to BIOTCH being the default rule for resolving disputes between people with roughly equal claim to parental rights. There have to be default rules for all kinds of things when there is no explicit or implicit agreement courts can point to, and BIOTCH is as good as any. It's hard for courts to get right, and they'll screw up an awful lot because of the lack of objective standards, but we live in an imperfect world.

We get ludicrous results if we extend BIOTCH too far. Wealthy stable people could take any children they wanted from less stable parents if the only criterion was what is best for the child.

This case is somewhere between those extremes. And, by whatever standard, I'm not sure what the right decision is in a case like this.
5.8.2008 7:36pm
Dixie Yid (mail) (www):
Has this doctrine been applied in any New York courts, to anyone's knowledge?
5.8.2008 8:54pm
Steve2:

Sure, that is true. The child is a person, of course. And the dispute involves three people but the legal is between two people, the parents. I meant that the child, while involved in the dispute, is not a party to the dispute in the way that the parents are.


Isn't the point/effect of BIOTCH to make the child something akin to a party to the legal dispute? Or is BIOTCH not the doctrine that lets the kid decide who gets custody?
5.8.2008 11:30pm
eric (mail):
Steve2, it is not that doctrine.

BIOTCH - best interests of the child is just an amorphous test for deciding custody between two parents at divorce. It is commonly used. It takes basically everything into account, except for income, I think. I believe some courts have held for some reason the ability to support the child on your own is not revelant to the BIOTCH standard because of child support. Which is utter bullshit, of course.
5.9.2008 6:00pm
Ryan Waxx (mail):

I believe some courts have held for some reason the ability to support the child on your own is not revelant to the BIOTCH standard because of child support. Which is utter bullshit, of course.


Remember that when the doctrine was developed, males had uniformly higher incomes than females. You cannot develop a system of rampant discrimination against males, if you agree to give consideration to one of their advantages when judging their fitness to be parents.
5.9.2008 8:54pm
eric (mail):
Good one, Ryan.

It is really all just a tender years presumption (written or not) and a not so healthy dose of chivalry.
5.10.2008 1:50am
Steve2:
eric,

Ah. Then does letting the kid pick have a doctrinal name?
5.11.2008 2:08am
eric (mail):
Steve2,

I have never heard one. I know that the court still has some discretion even if the child expresses a preference. It might be a statutory thing in some states that requires the judge to take the child's opinion into account after a certain age.
5.11.2008 4:20am
Steve2:
You mean after a certain age, the opinion of the person whose fate is being determined isn't the only thing that matters? Why not?
5.11.2008 3:00pm