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North Carolina Appeals Court Upholds Joint Custody for Separated Lesbian Couple

Lesbian partner deemed de facto parent

By Michael Baggot

RALEIGH, NC, May 8, 2008 (LifeSiteNews.com) - The North Carolina Court of Appeals upheld a district court decision on Tuesday granting a separated lesbian couple joint custody of the child they raised together.

Tuesday's decision upholds Durham County District Judge Ann McKown's ruling in Mason v. Dwinnell that biological parent Irene Dwinnell had freely created a de facto parent status for Joellen Mason, her domestic partner of eight years.

In 1997, Dwinnell gave birth to a child through artificial insemination.  Mason was present during Dwinnell's pregnancy and helped raise the child.  Although the hospital refused to recognize Mason as the child's second parent, the couple continued to identify each other as joint parents on school forms and other documents.

In 2000, the couple signed an agreement granting both equal parental rights.  They separated a year later and began a custody routine that bounced the child back and forth between the two.

Following Dwinnell's efforts to decrease Mason's contact with the child, an October 2004 court granted the couple temporary joint legal and physical custody.

In June 2006, Judge McKown made the joint custody permanent on the grounds that Dwinnell had "encouraged, fostered, and facilitated the emotional and psychological bond between the minor child and Mason."

The Court of Appeals that upheld McKown's 2006 decision stated that it was treating Mason as it would any other "third party" who had acquired de facto parental status.

As Leonard notes, NC courts recognize that biological or adoptive parents have "paramount interest" in their child's care.  Nonetheless, the state's courts have also used "the best interest of the child" to grant custody rights to de facto parents.

Tuesday's ruling is shaping legal precedence to give lesbian partners the same parental status granted to other third parties, such as stepparents of the opposite sex.

"Although this appeal arises in the context of a same-sex domestic partnership, it involves only the constitutional standards applicable to all custody disputes between legal parents and third parties," concluded Tuesday's ruling.

New York Law School Professor Arthur S. Leonard noted on his Leonard Link blog that the NC Court of Appeals "decided to treat this case as no different from any other case involving a custody dispute between a legal parent and a de facto parent."

Tuesday's decision contrasts with that of a similar 1991 case in New York, Alison D. v. Virginia M. In the 1991 decision, the New York Court of Appeals ruled that the lesbian partner of the child's biological parent was a "legal" stranger, despite having helped to raise the child.

Read Mason v. Dwinnell:
http://www.aoc.state.nc.us/www/public/coa/opinions/2008/070176-1.htm

Read Alison D. v. Virginia M.:
http://www.anusha.com/alison-d.htm

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