RALEIGH — In a ruling on an issue it had not previously considered, the North Carolina Court of Appeals upheld a decision by Durham County District Judge Ann McKown to award joint custody of a child to JoEllen Mason and Irene Dwinnell, former lesbian partners.

In the May 6 ruling on what is known in legal circles as a “case of first impression,” McKown found that Dwinnell, the birth mother of a boy conceived through anonymous donor insemination, had willingly created a de facto parent status for Mason that she could not unilaterally dissolve when the women ended their partnership.

Second lesbian court ruling
by Matt Comer . Q-Notes staff

RALEIGH — In another case involving LGBT parental custody, the N.C. Court of Appeals handed down a ruling against a lesbian co-mom seeking joint custody of the two children born to her former partner during the couple’s time together.

After her claim was dismissed in Orange County District Court, plaintiff Sue Ellen Estroff filed an appellate court motion for shared custody with her ex-partner, Srobona Tublu Chatterjee. The court ruled against the plaintiff, based upon Estroff’s lack of “parent-child relationships” with the two children.

The court cited Estroff’s and Chatterjee’s failure to ever enter into any legal agreement on the upbringing of the children and Chatterjee’s insistence “that [Estroff] was not the mother of the children; that she, [Chatterjee,] was and always would be their only mother.”
Somewhat surprisingly, Equality North Carolina praised the ruling — as well as the decision from the earlier lesbian custody dispute, Mason v. Dwinnell.

In a statement the group said, “One strong message from both cases is that if you want to both be equal legal parents you must take affirmative action to demonstrate that in your behavior, in conveying your intentions clearly to each other, in your agreements with each other and in what you put in writing.”

The statement concluded that “the court based their decisions on the facts in each case.”

Mason and Dwinnell lived as domestic partners for eight years. When they decided to raise a child together, they held a commitment ceremony, researched their options for conceiving a child and jointly decided that Dwinnell would bear the child.

In that process, they identified an anonymous sperm donor who had physical characteristics similar to Mason’s, and Mason fully participated, attending Dwinnell’s insemination sessions, prenatal care appointments and childbirth classes.

When their son was born, Mason cut the umbilical cord, and the couple gave the child the combined surname of Mason-Dwinnell on his birth certificate, but only Dwinnell was listed as a parent because the hospital refused to list both women.

Despite the birth certificate, the couple jointly agreed on who godparents would be, held a baptism ceremony at which they both acted as the boy’s mothers, involved Mason’s parents as grandparents and raised the child together as a family. On school forms and other critical documents Dwinnell named Mason as the second parent.

In 2000 when the child was three years old they signed a parenting agreement drafted by an attorney, in which they agreed that both of them were parents with equal parental rights. Dwinnell also executed a healthcare power of attorney authorizing Mason to approve medical care for the child and they jointly agreed on his education in a private school.

Mason was providing most of the financial support, and Dwinnell agreed that Mason would be able to take the dependent deductions for the child on her income tax.

Just a year later, however, the couple stopped living together and Mason moved one block away. Over the subsequent three years, they continued sharing parenting responsibilities with their son moving back and forth for overnights and, by 2003, settling into a regular custody rotation.

However, early in 2004, Dwinnell unilaterally changed the schedule to cut down Mason’s parenting time. When Mason saw her time with her son diminish she filed a complaint seeking custody.

Dwinnell sought a dismissal but the court rejected the motion, instead granting temporary joint legal and physical custody requiring that the boy spend equal time with each of his moms pending the outcome of a trial.

In June 2006 Judge McKown issued a permanent custody order finding that Dwinnell “encouraged, fostered and facilitated the emotional and psychological bond between the minor child and Mason,” and that “throughout the child’s life Mason has provided care for him, financially supported him and been an integral part of his life such that the child has benefited from her love and affection, caretaking, emotional and financial support, guidance and decision-making.”

The judge concluded that Dwinnell had waived her constitutional rights to exclude Mason and that it was in the best interest of the child for Mason to retain equal parental rights of custody and visitation.

Affirming this ruling, the Court of Appeals emphasized that the sexual orientation of the parents had nothing to do with the case. Rather, the court insisted that it was simply applying evolving North Carolina law about the parental status of “third parties” treated as de facto parents with the encouragement and consent of a child’s legal parent.

Writing for a unanimous three-judge panel, Judge Martha A. Geer also made clear that the court was not “enforcing” the parenting agreement the women adopted when their boy was three. Instead, she said, the agreement was emblematic of their joint intentions, reinforcing the trial judge’s factual conclusions.

Normally a birth or adoptive parent has a “constitutionally-protected paramount interest in the companionship, custody, care and control of her child,” but North Carolina courts recognize that when a parent’s conduct is “inconsistent” with this “paramount interest” it is appropriate to consider the “best interest of the child” in a custody contest such as this one.

At the trial level McKown also drew on a legal doctrine known as “parent by estoppel” — under which Dwinnell would be precluded from asserting a position that contradicts her past conduct — to reinforce her ruling but the Court of Appeals found this unnecessary.

The court quoted extensively from a 2000 ruling by the New Jersey Supreme Court, and stated, “We stress that the cases that we have cited from other jurisdictions have each applied, as we do, a test applicable generally to third parties seeking custody of a child contrary to the wishes of the legal parent.

“We conclude that the District Court’s findings of fact establish that Dwinnell, after choosing to forego as to Mason her constitutionally-protected parental rights, cannot now assert those rights in order to unilaterally alter the relationship between her child and the person whom she transformed into a parent. Her choice does not mean that Mason is entitled to the rights of a legal parent, but only that a trial court may apply the ‘best interest of the child’ standard in considering Mason’s request for custody, including visitation.”

The court rejected Dwinnell’s argument that Mason could only be granted custody if she herself were found to be an unfit parent.

Judge Geer also wrote that the court was not creating a “bright line test” to govern cases of this sort, but was focused on the particular facts in this case.

“Although this appeal arises in the context of a same-sex domestic partnership,” wrote Geer, “it involves only the constitutional standards applicable to all custody disputes between legal parents and third parties…Courts do not violate a parent’s constitutionally-protected interest by respecting the parent-child relationships that the legal parent — in accordance with her constitutional rights — voluntarily chose to create.”

The court’s disclaimer notwithstanding, it is significant that a North Carolina appellate panel decided to treat a case involving lesbian parents as no different from any other case involving a custody dispute between a legal parent and a de facto parent.

By contrast, this ruling is sharply different from the contrary approach New York’s Court of Appeals took in a 1991 case, Alison D. v. Virginia M., that remains the precedent in the Empire State. In that case, the New York court, treating the lesbian co-parent as a “legal stranger” to the child, found she lacked legal standing to get a hearing on her claim.

— This piece originally appeared in New York’s Gay City News (www.gaycitynews.com) and is reprinted with permission.