By Kenneth C. Jones
A stepmother who had "primary day-to-day responsibility" for an
11-year old boy for eight years was his "equitable parent" and could
win sole legal custody of the boy over the father, who was her ex-husband, and
the birth-mother, even though they were not "unfit" parents, the St.
Louis City Circuit Court has ruled.
The birth mother had given the boy the stepmother and the father when he
was three, and allowed him to live with the stepmother alone after she and the
father were separated - and later divorced - when he was eight.
In determining the right to custody, the court rejected the "best
interests" and the "parental unfitness" tests, and instead
adopted the "actual detriment to the child" test. "[The
stepmother] may be awarded custody of the minor child.... even if Mother and
Father are not unfit or unable to care for [him], if [his] growth and
development may be detrimentally affected by placement with Father or Mother
or by elimination of contact with [the stepmother]," said Circuit Judge
Thomas Frawley.
Frawley cited cases from New York and Washington as grounds for invocation
of the equitable parent doctrine, which has not been recognized in Missouri.
The case is In Re The Marriage Of Miller, MLW No. 21457, issued on Nov. 19
'Not Same World As '50s'
"We've got to bring our law into the next century and recognize what's
going on in the world," commented Frawley on his ruling. "The
nuclear family is not as prevalent as it used to be. You'd be amazed how many
parents I see who just leave their kids with people not related by blood or
marriage."
Earlier this year, Frawley ruled that a half-sister was the "equitable
parent" of two younger siblings and awarded her custody over the father.
That case was In Re The Matter of Cotton, MLW No. 19449, reported in the April
14 issue of Missouri Lawyers Weekly.
"The Cotton case is up on appeal right now - I think arguments are set
for January," Frawley said. And he noted that although the court of
appeals could affirm the case without addressing the equitable parent
doctrine, "Id like to think they'll recognize that the world we live in
today is not the same world we lived in the'50s.
"And the equitable parent doctrine isn't something I thought up on my
own - I'm not smart enough. Other states have adopted it," Frawley said.
"Some people say that if this gets adopted, there will be an onslaught
of litigation, but I'm not troubled by that. What's best for the kids is most
important. And if that generates more litigation, so be it.
"Whether the doctrine is affirmed depends on the panel," Frawley
said. "Judicial activists would help. Strict constructionists would say
there's no statute that it's for the legislature to adopt the theory, not the
courts"
"I like this opinion," said Kansas City attorney Sheldon
Bernstein. "The equitable parent doctrine seems to be a basic, common
sense approach - there's more to being a parent than just biology. And I don't
think there's a danger in its being read too broadly. Trial judges already
have tremendous discretion, and in my experience try very hard to do what's
best for the kids.
Kansas City Courts Cautious
'The courts out west have not adopted this approach that I'm aware
of," he continued. "They're more cautious and follow the letter of
the law - they won't take away custody unless the parents are unfit or
unsuitable.
Lawrence Pratt of St. Louis, who represented the stepmother, said,
"It's very gratifying to anybody working in domestic relations to see the
court system respond to real-world problems with real-world solutions. This is
a progressive doctrine. And there's no more room for abuse with this doctrine
than we have right now in custody cases."
"The important thing for proving your client is an equitable parent is
the actual relationship that exists between your client and the child,"
said Pratt. "Introduce anything that supports this - the personal details
of the child's daily life, such as how long the child's been living there,
what he does when he wakes up and what he does when he gets home from
school."
"This is a great result," said Leigh Joy Carson of St. Louis, who
was the boy's guardian ad litem. There's nothing else in place now that
effectively deals with what happened here. And there's no danger in the
doctrine because each case is so fact-specific, focusing on the relationship
between the person seeking to be named parent and the child."
Relationship With The Boy
The boy was born in July 1987. In 1989, his birth mother voluntarily gave
the boy to the father and his wife to raise. The wife had "primary
day-to-day responsibility" for the boy. The father and stepmother
separated in 1994 (according to the father, the separation was in 1995), and
the boy continued to live with the stepmother. Since that time, she
"arranged for the [boy's] schooling, religious, upbringing,
extracurricular activities, medical care, including testing for attention
deficit disorder, and counseling."
The stepmother filed a petition seeking a determination that she had
"equitably adopted" the boy. The father responded by asking that he
be awarded primary care, custody and control. And the birth- mother filed a
cross petition under the Uniform Parentage Act, requesting that the father be
declared the boy's biological father, and that she be awarded primary care,
custody and control. At trial, the father acknowledged that he had hit the
stepmother in the presence of the boy, and that he was convict-ed of
physically assaulting her. He also said that even though he wanted to be the
one who helps the [boy] achieve his goals," he never "attended a
parent-teacher conference or talked with the [boys] teacher, never helped [the
boy] with basketball, and attended only a few of [his) basketball games."
In addition, when the boy once hurt his hand while in the father's physical
custody, the father did not seek medical attention - but the stepmother later
brought the boy to the hospital, where it was discovered he had a broken hand.
The father also said that he would take the boy off his medication for
hyperactivity because he did not think the boy needed medication.
The boy's birth mother testified that she had not seen the boy for over two
years at the time of trial. She was living with her husband and four other
children in a four-bedroom apartment, and acknowledged that she previously had
an alcohol problem but "kicked" it without treatment.
Having found these facts, Frawley opined "Social fragmentation and the
myriad configurations of the modern family present courts with new problems.
The assumption that granting biological or adoptive parents exclusive parental
rights protects the best interests of a child is ... not only unrealistic but
also outdated."
Courts must seek to minimize "the detriment a child suffers when his
or her emotional bonds do not conform to traditional family norms," the
judge said, and "never underestimate his or her ability to manage
multiple parenting relationships." In addition, the courts must focus on
a child welfare, rather than on his or her biological parents' rights and
establish tests which are sensitive to both the rights of the biological
parent and the needs of the child" and "must recognize the
importance of a 'parent' in child's life regardless of the individuals
relation to the child."
'Flexible' Definition Of 'Family'
In Frawley's view, the definition of "family" was of primary
importance. "Courts must re-examine the theory that a child may have only
biological parents and adopt more flexible 'functional approach', as opposed
to the traditional, stricter 'formal approach', for defining family."
He said that the "term 'family', in the context of modern
relationships, is a continuing relationship of love an care, and an assumption
of responsibility for some other person," citing a 1982 case from New
York.
And while the "formal approach" to family "recognizes only
individuals related to each other by blood, adoption or marriage.... the
functional approach' defines family by determining whether a relationship
shares the essential characteristics of a traditionally accepted relationship,
such as economic cooperation, participation in domestic responsibilities and
affection between the parties."
Based on these premises, the judge invoked the doctrine of "equitable
parent " which "protects the third party who reasonably relied on
the natural parent's assertions regarding the third party's status and
protects the child who, likewise, relied to his or her detriment on the
natural parent's representations concerning the status of the third
party."
'Equitable Parent'
Frawley defined an "equitable parent" as "an individual who
provides for the physical, emotional, and social needs of a child and
demonstrates that (1) he or she had physical custody of the child for an
extended period, (2) his or her motive in seeking parental status is a genuine
care and concern for the child, and (3) his or her relationship with the child
began with the consent of the child's legal parent," citing a 1991 case
from New York and a 1981 case from Washington, the judge also made observations
regarding the rights of biological parents. "A biological parent's right
to custody of his or her child and to determine with whom his or her child
associates must be balanced with the state's interest as parens patriae in the
child's welfare, and the biological parent's rights may at times be outweighed
when these interests conflict."
And although infringement of a biological parent's right to raise his or
her child "has been based primarily on the fitness of the parent,"
Frawley said a child "is a person and not a chattel over which a
biological parent has an absolute possessory interest." And therefore the
"parental unfitness" test is inappropriate, because "it does
not sufficiently protect a minor child's welfare."
In addition, the "best interests" test is improper because it
"does not adequately protect a biological parent's primary right to
custody."
'Actual Detriment To Child'
So the judge, citing a 1981 case from Washington, adopted a new test-- the
"actual detriment to the child" test - to be used in determining
whether to infringe on a biological right to raise his or her child.
"[The stepmother] may be awarded custody of the [boy], even if Mother and
Father are not unfit or unable to care for the [boy], if the boy's growth and
development may be detrimentally affected by placement with Father or Mother
or by elimination of contact with [the stepmother]."
"[The stepmother] and the [boy] have formed a family unit, and, in the
opinion of the Court, disruption of that stability and continuity by
elimination of contact between [the stepmother] and the [boy] will result in
actual detriment to the [boy].
Furthermore, the stepmother proved by clear and convincing evidence that
"(1) she and the [boy] mutually acknowledge a relationship as parent and
child, (2) Husband and Mother cooperated in the development of the
parent-child relationship, (3) she desires to have the rights afforded to a
parent, and (4) she is willing to take on the responsibility of supporting the
minor child."
Frawley awarded legal and primary physical custody to the stepmother, and
temporary physical custody to the father and birth mother. In addition, the
judge required both the father and birth mother to pay child support to the
stepmother.
