Vt. Court Rules on Parent Rights

Wednesday, December 06, 2017

Burlington — A Vermont Supreme Court ruling will allow a woman to seek shared custody of a girl she had been raising with her former partner, who sought to keep the woman out of the child’s life.

The two Chittenden County women had jointly chosen to raise the child together, but for legal and logistical reasons, only one woman was the legally adoptive parent. After they split up, the legally adoptive parent sought to block her ex’s relationship with the child, according to the ruling.

The advocacy group GLBTQ Legal Advocates & Defenders, or GLAD, represented the woman seeking shared custody. The group hailed the ruling as a victory for families where parents are unmarried, where one parent isn’t biologically related to a child or where one parent formally adopts a child and the other does not, as in this case.

“This decision is child-centered, as the law should be,” GLAD attorney Jennifer Levi said in a statement. “It protects parent-child relationships based on the loving bonds that create them, not based on legal formalities.”

The ruling says this is the third case in the last decade where the court was asked to decide whether someone who is not biologically related to the child, has not legally adopted the child and is not married to the child’s legal parent also may be considered a legal parent of the child.

Throughout their decision, and in a dissenting opinion from Justice John Dooley, the justices chastise the Legislature for not taking action to update and clarify Vermont’s parentage laws in recognition of changing family structures.

“In the absence of guidance from the Legislature on this question, this court must continue to resolve these cases as they arise,” wrote Justice Beth Robinson for the majority.

That could change during the upcoming legislative session. A law passed this year created a parentage study committee, which recently sent its report to the House and Senate Judiciary committees.

The report says “most states now recognize some form of ‘de facto’ parents.” It proposes legislation modeled on a recently passed Maine law, which creates a standard for determining when a person not otherwise considered a legal parent can be declared one.

Rep. Maxine Grad, D-Moretown, chairwoman of the House Judiciary Committee, said passing such a law in Vermont is a priority for her.

Role as a Parent

The case the Supreme Court decided last week was brought by Sarah Sinnott, who was with her partner, Jennifer Peck, for seven years from 2003 until 2010.

Peck had already adopted a child from Guatemala before the two got together, but the two raised the girl as an “intact family,” and the child called Sinnott “Mom” or “Mamma” from the time she could speak, according to facts presented by Sinnott’s attorneys.

The couple later decided to adopt a second child from Guatemala, but for a host of practical and legal reasons, they decided Peck would be the sole adoptive parent, according to Sinnott’s attorneys.

Peck was not represented by counsel, and did not seek to present arguments to the court, according to Dooley’s dissent.

Sinnott “fulfilled the role of parent to the children in every aspect,” and the couple planned to enter into a civil union and go through a legal second-parent adoption, but a series of life complications got in the way, the ruling states.

After the couple broke up in 2010, they created a shared custody agreement that called for each woman to have the children half of the time. Sinnott alleges that in 2013, Peck stopped honoring the agreement by disrupting their contact schedule.

Sinnott texts and sees the children as Peck allows, but the second daughter alleged that Peck said she would call the police if the girl emailed Sinnott again, according to the ruling.

In 2015, Sinnott filed in family court to establish parentage, claiming to be the “de facto and intended mother of the children” and seeking shared custody as well as legal recognition as their parent, according to the ruling.

Earlier this year, a family court judge dismissed Sinnott’s case, concluding that the definition of “parent” in Vermont statute does not extend to someone who is not connected by biology, adoption or marriage or civil union to the child or the child’s legally recognized parent.

Sinnott appealed to the Vermont Supreme Court, which issued a ruling on Friday that affirmed the lower court’s dismissal of Sinnott’s claim to be a legal parent of the older child, whom Peck adopted before they were a couple, but reversed its decision for the younger child, whom they adopted together.

“It is hard to imagine how such an approach that allows for a complete and involuntary severing of a lifelong parent-child relationship could possibly promote children’s welfare,” wrote Robinson for the majority. “In many cases, the consequences of such a rule would be nothing short of tragic.”

The case is now back in family court. Sarah Star, a Middlebury, Vt., attorney who served as co-counsel for Sinnott, declined to comment on the next steps in the family court case.

Bill on ‘De Facto’ Parents, Assisted Fertility

Kent Hughes, a Burlington family law attorney who served on the parentage study committee, said he’s working with Grad and attorneys for the Legislature to write and find sponsors for a bill modernizing Vermont’s laws.

Hughes said that, in addition to establishing a legal standard for when someone can be declared a de facto parent, the legislation will address legal issues around establishing parentage in instances of assisted fertility.

Since the mid-1990s, Hughes said, his adoption practice has increasingly morphed into an assisted fertility practice as more couples turn to sperm or egg donation and surrogacy to build a family. Now technology allows embryo donation as well, and Vermont’s laws are woefully ill-equipped to deal with issues that can arise, he said.

“There’s just nothing in the law that establishes parentage” in cases where families rely on assisted fertility, he said. Hughes said he hopes that will change when lawmakers return in January.