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

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 (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 the C.M. case, 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 bom 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 bom, 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 bom, 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 bom 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 (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 (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, ante 774, 783 (1999).⁵ See Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 702, 703 (1984) (postadoption visitation by child’s mother was properly evaluated by examining child’s best interests); Koelle v. Zwirin, 284 Ill. App. 3d 778, 784 (1996) (best interests test controls claim of visitation by biological stranger to child); Roberts v. Ward, 126 N.H. 388, 392 (1985) (court may use its parens patriae power to decide whether welfare of child warrants court-ordered visitation with grandparents); Zack v. Fiebert, 235 N.J. Super. 424, 432 (1989) (same). But see Enos v. Correia, 38 Mass. App. Ct. 318, 323 n.11 (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 he. 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 patented 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 (1999); ALI Principles of the Law of Family Dissolution § 2.03(l)(b) (Tent. Draft No. 3 Part 1 1998) (adopted at annual meeting May, 1998). The de facto parent shapes the child’s daily routine, addresses his developmental needs, disciplines the child, provides for his education and medical care, and serves as a moral guide.⁶ See ALI Principles of the Law of Family Dissolution, supra at § 2.03(6).

The recognition of de facto parents is in accord with notions of the modern family. An increasing number of same gender couples, like the plaintiff and the defendant, are deciding to have children. It is to be expected that children of nontraditional families, like other children, form parent relationships with both parents, whether those parents are legal or de facto. See Adoption of Tammy, 416 Mass. 205, 207 (1993). See also J. Goldstein, The Best Interests of the Child 12-13 (1996). Thus, the best interests calculus must include an examination of the child’s relationship with both his legal and de facto parent.

In assessing a child’s relationship with his de facto parent, a judge may consider the factors we have set forth previously. For example, in C.C. v. A.B., 406 Mass. 679 (1990), we held that a man could maintain a paternity action under G. L. c. 215, § 6, even though the mother of the child was, at the time of conception and birth, married to another man. Id. at 680. We reasoned that the man demonstrated a substantial parent-child relationship. Id. at 689. He was listed on the child’s birth certificate and baptismal record. The child bore the plaintiff’s last name. The mother admitted that the plaintiff might be the father of the child. After the child was bom, the plaintiff, the mother, and the child lived together as a family. Finally, the plaintiff demonstrated his interest in continuing his relationship with the child. Id.

We reached the opposite result in C.M. v. P.R., 420 Mass. 220 (1995). In that case, a man who was not the biological father of a child sought an adjudication of paternity, as well as incidental visitation rights, under the equitable parent doctrine.⁷ Id. at 220, 223. We held that the plaintiff did not assert a ground on which relief could be granted because “[h]is devotion to the child does not, without more, permit an adjudication of paternity or visitation privileges.” Id. at 223. Although the plaintiff had been living with the mother for several months prior to the birth of the child, he had not been part of the decision to create a family by bringing the child into the world. Id. at 220-221. Unlike C.M., the plaintiff before us was intimately involved in the decision to bring the child into the world. C.M. also sought an adjudication of legal paternity, not visitation rights as a de facto parent. We did not address the de facto parent doctrine in C.M.

We conclude that the single justice did not err or abuse his discretion in reinstating the order of temporary visitation. The Probate Court judge determined that visitation between the plaintiff and the child would be in the child’s best interests, and that finding is amply supported. The plaintiff is the child’s de facto parent.⁸ The plaintiff has participated in the child’s life as a member of the child’s family. They attended workshops and doctor’s visits together. The plaintiff participated in the birth as a father would. The plaintiff was listed on the birth announcements, and the child’s last name consists partly of the plaintiff’s last name. Here, for example, the plaintiff and the defendant decided to have a child and to form a family. The plaintiff and the defendant manifested their level of commitment to each other, to the child, and to their new family by executing and re-executing the coparenting agreement.⁹ In the coparenting agreement, the parties revealed their beliefs regarding the child’s best interests, stating their wish that the child continue his relationship with the plaintiff in the event that the parties’ relationship ended. See Wilcox v. Trautz, 427 Mass. 326, 334 n.7 (1998) (cohabitating couple can contract regarding the rights of their children so long as the judge determines that the terms reflect the child’s best interests). After the child’s birth, the plaintiff resided with the child and the defendant as a family. With the defendant’s consent, the plaintiff participated in raising the child, acting in all respects as a de facto parent. The GAL found that the plaintiff was an active parent, responsive to the child’s needs. Thé plaintiff also supported the family financially, and, while the defendant was ill, assumed primary care for the child. The defendant encouraged the plaintiff’s parental role, representing the plaintiff as the child’s parent in her public dealings and expressing her desire that the plaintiff care for the child as a parent.¹⁰ The defendant authorized the plaintiff to make medical decisions for the child and designated the plaintiff as the child’s guardian in the event of the defendant’s death or incapacitation. The child’s attachment to the plaintiff as a de facto parent is evidenced by his calling her “Mommy” and telling people he has two mothers. Thus, on these facts, the best interests of the child require that the plaintiff, as the child’s de facto parent, be allowed temporary visitation with the child.¹¹

We disagree with the defendant’s assertion that this result restricts her fundamental right, as a fit parent, to the custody of her child. A parent’s liberty interest in her relationship with her child is grounded in art. 10 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Opinion of the Justices, 427 Mass. 1201, 1203 (1998). Parental rights, however, are not absolute. Opinion of the Justices, supra. Indeed, postadoption visitation by members of an adoptee’s natural family is constitutionally permissible, Petition of the Dep ’t of Social Servs. to Dispense with Consent to Adoption, supra, as is visitation by grandparents. G. L. c. 119, § 39D. We must balance the defendant’s interest in protecting her custody of her child with the child’s interest in maintaining her relationship with the child’s de facto parent.¹² See M.J.C. v. D.J., 410 Mass. 389, 393 (1991); C.C. v. A.B., supra at 691. The intrusion on the defendant’s interest is minimal. What tips the scale is the child’s best interests. “The first and paramount duty of courts is to consult the welfare of the child.” Youmans, supra at 782, quoting Richards v. Forrest, 278 Mass. 547, 553 (1932).

Moreover, this case differs from cases in which a putative father’s paternity suit disrupts an existing family unit. The family that must be accorded respect in this case is the family formed by the plaintiff, the defendant, and the child. The defendant’s parental rights do not extend to the extinguishment of the child’s relationship with the plaintiff. See Opinion of the Justices, supra (overriding principle in determining right of parent to custody must be best interests of child); Richards v. Forrest, supra (“Parents are the natural guardians of their minor child and entitled to its custody. But they have no absolute property right of which they can in no way be deprived without their consent. Their right will not be enforced to the detriment of the child”). The child’s interest in maintaining his filial ties with the plaintiff counters the defendant’s custodial interest. See Opinion of the Justices, supra at 1206; Adoption of Tammy, 416 Mass. 205, 214-215 (1993) (“As the case law and commentary on the subject illustrate, when the functional parents of children bom [to a mother and her same-sex partner] separate or one dies, the children often remain in legal limbo for years while their future is disputed in the courts. ... In some cases, children have been denied the affection of a functional parent who has been with them since birth, even when it is apparent that this outcome is contrary to the children’s best interests”). The only family the child has ever known has splintered. The child “is entitled to be protected from the trauma caused by the disruption” of his relationship with the plaintiff.¹³ Youmans, supra at 784.

We conclude that, on these facts, the Probate Court properly allowed the plaintiff’s motion for temporary visitation with the child. We affirm the order of the single justice reinstating the Probate Court judge’s order for temporary visitation.

So ordered.

1 The defendant asks us also to address whether the plaintiff may seek adoption or custody of the child and whether a coparenting agreement executed by the parties is specifically enforceable. The only issue before the single justice was the propriety of the temporary visitation order. The plaintiff’s custody, adoption, and financial claims are still pending in the Probate Court. We do not reach these issues.

2 These documents included “Medical and Health Care Authorization,” “Designation [of the plaintiff as] Standby Guardian,” and “Nomination of Guardian of the Person and Property of my Child.”

3 The defendant is correct that other statutes conferring jurisdiction do not provide the Probate Court with authority in this matter. For example, when a child’s married parents separate or divorce, G. L. c. 208, §§ 19 and 28, authorize the Probate Court to make orders regarding visitation while the divorce is pending and after it becomes final. Here, the child’s parents, the plaintiff and the defendant, were not married nor could they be under Massachusetts law. Similarly, statutes governing paternity do not confer jurisdiction over actions like that before us. General Laws c. 209C, §§ 5 and 10, require an adjudication of paternity before the Probate Court is authorized to award visitation. The Legislature has authorized the Probate Court to grant visitation rights to grandparents of unmarried minor children, G. L. c. 119, § 39D, but there is no parallel provision authorizing similar measures in actions pressed by parents in the plaintiff’s position.

4 We note that G. L. c. 119, § 39D, granting visitation rights to grandparents, does not limit the scope of equity jurisdiction of the Probate Court. It does not preclude in all other circumstances an order of visitation between a child and one who is not a legal parent. See Youmans v. Ramos, ante 774, 783 n.18 (1999).

5 The dissent attempts to distinguish this case from Youmans by claiming that the defendant and the child were never subject to the Probate Court’s jurisdiction in some other proceeding or for some other reason. The dissent ignores the fact that the plaintiff seeks to adopt the child and share legal custody because, in the dissent’s view, these claims are baseless. Even without these additional claims, however, it is our opinion that the broad jurisdiction of the Probate Court gives it authority in this matter.

The dissent also implies that, unlike the plaintiff here, the aunt in Youmans was a de facto parent because she was a legally adjudicated guardian. However, the aunt was appointed temporary guardian only eleven days before the father moved for custody. We concluded that the aunt was a de facto parent not because she held temporary guardianship, but because she attended to the child’s developmental, medical, and educational needs for the five years from the child’s infancy to her appointment as temporary guardian. See You-mans, supra at 776.

6 The de facto parent fulfils this role “for reasons primarily other than financial compensation.” See ALI Principles of the Law of Family Dissolution § 2.03(1)(b) (Tent. Draft No. 3 Part 1 1998) (adopted at annual meeting May, 1998). Thus, we do not recognize as a de facto parent a babysitter or other paid caretaker. Even though these caretakers may grow to feel genuine affection for their charges, their caretaking arrangements arose for financial reasons. See id. at comment (b)(ii), at 42.

7 The equitable parent doctrine provides that the husband of the biological mother of a child bom or conceived during marriage, who is not the biological father of the child, may be treated as the father if a parental relationship is acknowledged by the father and child or is developed in cooperation with the mother. See C.M. v. P.R., 420 Mass. 220, 223-24 (1995).

8 The parties acknowledged that the plaintiff is the child’s de facto parent in the coparenting agreement they executed after the child’s birth.

9 The defendant contends that the existence of the coparenting agreement is inapposite because it is not enforceable under Maryland or Massachusetts law. The agreement is enforceable at least with respect to property, financial, and other matters relevant to the parties’ relationship, but not as to the child’s best interests. See Wilcox v. Trautz, 427 Mass. 326, 334 & n.7 (1998).

10 The dissent misperceives our reasoning as relying on rights arising from the agreement. Our focus is the best interests of the child, which encompass the child’s relationship with a de facto parent. We view the agreement as indicative of the defendant’s consent to and encouragement of the plaintiff’s de facto parental relationship with the child. The agreement also confirmed that the plaintiff did not assume caretaking responsibilities in exchange for financial remuneration. And, finally, the agreement revealed the parties’ belief as to the child’s best interests. The judge therefore could consider the agreement to determine visitation, as well as to resolve the financial and property issues.

The dissent further argues, relying on the ALI draft, that the fact that the plaintiff did not adopt the child is “ ‘some evidence’ that [the plaintiff’s] relationship with the child does not rise to the level of de facto parenthood.” Post at 839. In fact, the ALI draft states that failure to adopt is “some evidence, although not dispositive, that the legal parent did not consent to the formation of the de facto parent relationship.” See ALI Principles of the Law of Family Dissolution, supra at § 2.03 comment (b), at 41. The agreements executed by the defendant tend to establish her consent to the plaintiff’s de facto parental role.

The dissent infers from our attention to the coparenting agreement a conclusion that such agreements, when executed by same-sex couples, “stand[] on a special footing.” Post at 841. According to the dissent, our decision “is a clear step in granting legal force to [same-sex] unions.” Id. We do not agree. The coparenting agreement stands on the same footing as the agreement in Wilcox, supra, where we held that a cohabitating couple could enter into a contract regarding financial, property, and other matters relevant to their relationship. See id. at 334. Here, unlike Wilcox, a child is involved. For the terms of the agreement dealing with the child, the child’s best interests is the critical issue. See id. at 334 n.7. The judge was therefore correct to apply the best interests of the child standard. By treating same-sex couples differently, it is the dissent that is trying to put the contract on special footing.

11 This result is in accord with other jurisdictions. See, e.g., J.A.L. v. E.P.H., 453 Pa. Super. 78, 92 (1996) (mother’s former same-sex partner could pursue visitation because she stood in loco parentis to child); Holtzman v. Knott, 193 Wis. 2d 649, 694, cert. denied, 516 U.S. 975 (1995) (same-sex partner can seek visitation when she has parent-like relationship with child and significant triggering event justifies State intervention in child’s relationship with biological or adoptive parent); A.C. v. C.B., 113 N.M. 581, 586 (1992) (standing based on deprivation of right to maintain continuing relationship with child). Jurisdictions that have reached the opposite result differ from ours because their statutory law supplants the equitable powers of their courts. See, e.g., West v. Superior Court, 59 Cal. App. 4th 302, 309 (1997) (court lacked jurisdiction to enter order granting visitation rights to former partner because statutory law occupies field of child visitation); Music v. Rachford, 654 So. 2d 1234 (Fla. Dist. Ct. App. 1995) (per curiam) (visitation rights with regard to nonparent solely statutory); Alison D. v. Virginia M., 77 N.Y.2d 651, 656 (1991) (same-sex partner not parent within meaning of domestic relations statute). But see Lynda A.H. v. Diane T.O., 243 A.D.2d 24, 27 (N.Y. 1998) (same-sex partner denied visitation because it impermissibly impaired biological mother’s right to custody and control of child).

12 On this point we take a different view from the dissent. The dissent stresses the interference with the defendant’s control over the child’s upbringing while discounting the child’s interest in maintaining a relationship with his other parent.

13 The defendant further argues that the Probate Court judge erred by failing to hold a full evidentiary hearing before ordering temporary visitation. She asserts that she should have had the opportunity to cross-examine the GAL and to present the testimony of family members and the child’s counsellor. We disagree. The judge properly solicited a preliminary report of the GAL and gave both parties an opportunity to be heard on the report and the motion for visitation. The visitation order is temporary and may be altered or even vacated on a trial on the merits. The case cited by the defendant, Gilmore v. Gilmore, 369 Mass. 598 (1976), is distinguishable because the error in that case was the refusal of the judge to permit the guardian ad litem to testify at a trial on the merits in a divorce case. Id. at 604. The action before us has not proceeded to trial and thus is not subject to the same procedural requirements.