Landmark Parentage Ruling by Vermont Supreme Court

single mom divorce

Last week, the Vermont Supreme Court issued its opinion in Sinnott v. Peck, a case involving two unmarried same sex persons and a child adopted during their relationship. The case has significant implications for handling custody issues for children of same sex couples who choose not to marry.

Sarah Sinnott and Jennifer Peck were in a relationship from 2003 to 2010. When the relationship began, Jennifer had an adopted one-year-old child whom the couple raised as an intact family and the child would refer to Sarah as Mom or Mama. Jennifer encouraged the child to consider Sara her Mama. One year later, Sarah and Jennifer decided to pursue adopting another child. Because of agency difficulties and regulations against same sex couples adopting, Jennifer proceeded to complete the adoption in her name only, even though Sarah and Jennifer intended to raise the new child jointly. After the adoption, Sarah took maternity leave to become the new child’s primary caretaker; the child referred to her as Mom; she took on the primary role of parenting the child.

Sarah and Jennifer intended to formalize their relationship as a civil union but other unforeseen complications interfered. When the relationship ended, the parties entered a shared custody agreement but never filed it with any court. Matters became unsettled in 2013, when Jennifer sought to cut off connections between the younger child and Sarah.

Sarah filed a petition in the family court to establish parentage as the de facto mother of the children and seeking custodial rights. The family court dismissed, ruling it had no authority to entertain such a request because Sarah had no biological connection to the children.

The Vermont Supreme Court reversed, carving out a narrow exception in cases where a party with no biological or legal connection to a child seeks custody. Where a couple evidence a mutual intent to co-parent an adoptive child, the non-biological or non-adoptive parent may petition for custody based on the mutual agreement to raise the child as co-parents and the petitioning parent can establish that relationship and evidence of co-parenting. The Court analogized this case in some ways to a paternity case where no one other than the legal parent and the putative parent would have a legal claim to parental status. The Court reasoned:

Many gay and straight individuals and couples, like the couple in this case, bring children into their families through adoptions that do not fit the paradigm to which courts are most accustomed. Some women and men opt for single parenthood. Some family structures incorporate more than two parents. Families are evolving, and we will no doubt continue to be asked to decide cases involving a variety of family structures. In the absence of statutory guidance, we need a coherent vision of parenthood and family to guide our case-by-case consideration of these various circumstances—or at least a rule that promotes the best interests of children in cases like this in which parents jointly agree to bring a child into their family and co-parent together.

As we have mentioned before, what we need to happen sooner rather than later is for state legislatures around the country to amend their parentage statutes to include not just claims for paternity by biology but for parentage by mutual intent of parties who bring a child into the world together, whether through surrogacy or adoption, to assure that their parental relationship with the child continues when the relationship itself dissolves. Until then, courts will have to craft these temporary solutions to protect the welfare of the children and the interests of the parents.

If you have questions about parentage and custody issues in same sex relationships, contact us – we can help.

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