From — Missouri Lawyers Weekly

December 15, 1997

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.