From – Missouri Lawyers Weekly

May 13, 1996

A lesbian without any biological or legal relationship to a two and one-half year old child has been named the ‘equitable parent’ of the child and given full visitation rights in a St. Louis City Circuit Court case.

The court broke new ground in Missouri law by adopting the doctrine of  “equitable parent.”  The court also adopted a new test for determining custody.

The “best interests” test does not adequately protect a biological parent’s primary right to custody, said Judge Thomas J. Frawley in his Findings of Fact, Conclusions and Judgment. And the “parental unfitness” test does not sufficiently protect a minor child’s welfare.

In place of those tests, Frawley adopted the “actual detriment to the child” test.

Under this test, courts must consider whether a child’s growth and development may be detrimentally affected by eliminating contact between the child and a nonparent.

He granted legal custody of the child to the child’s biological mother, but ordered the mother and another woman to share child-rearing decisions and physical custody equally.

The case is A.L. v. Y.D.R., MLW No.16328. Frawley entered his order on May 7.

So Cool!

“It’s so exciting to have been part of this case – this is so cool!” said St. Louis attorney Leigh Joy Carson, the guardian ad litem for the child.

“The decision is interesting because it has much broader applications, to stepparent situations and the custody claims of third parties.” Carson said.

The mother’s attorney, Allen I. Harris of St. Louis, agrees the decision is broad, but he does not think it’s cool.

“I think [the court] went way too far. This would allow anybody to come in and seek custody of a child,” he said. He plans to appeal.

Unanswered Question

“This case points up the problems that develop with nontraditional relationships that generate children,” observed Clayton attorney Allan F. Stewart.

“The ‘equitable parent’ doctrine is a concept to resolve custody cases, but it is not a well-recognized doctrine.” Stewart added.

Although it does resolve the visitation question, other questions are left unanswered, according to Stewart.

“Without a termination of parental rights, the biological father still has rights out there,” he said. “And for purposes of inheritance, it is not clear if this is the child of [the equitable parent].”

Stewart said it may also be difficult for the equitable parent to prove to outsiders, such as health care providers and school officials, that she has the authority to make decisions for the child.

“She may have to carry a certified copy of the court’s order with her at all times.” And Stewart acknowledged that, even then, the outsiders may not interpret the order as the equitable parent does.


Frawley gave little of the factual background concerning the case; in fact, he never mentioned the child’s biological father and made no reference to the circumstances of the child’s birth.

Instead, he focused on philosophical observations coupled with citations of cases from other states.

These led him to conclude that one woman was the “equitable parent” of the child. And he concluded this woman should have visitation rights with the child because to deny them to her would have a detrimental effect on the child.

Frawley followed with a series of very specific orders to each “parent” concerning custody of the child and the exercise of visitation rights.

Lovers’ Spat

The two women had dated on occasion over a period of years, but this relationship ended when the biological mother became pregnant with the child, according to St. Louis attorney Adrienne L. Schaffer, who represented the other woman.

The mother had three other children and considered ending this pregnancy, but the other woman talked her out of it, Schaffer said.

The other woman wanted children of her own, but was incapable of bearing children.

According to Schaffer, the women agreed that the mother would give birth to the child and then deliver custody to the other woman.

The child was born on June 19, 1993: The biological mother gave him the same surname as that of the other woman and the child’s first name was a variant of the other woman’s first name.

Transfer Of Custody

The mother and child came home from the hospital on June 21 and the mother handed the child “through a car window” to the other woman, Schaffer related.

The other woman claimed she was the child’s primary custodian for the next two years but, as a nonparent, she lacked authority to obtain medical care for him.

A dispute arose between the two women and on June 7, 1995, juvenile authorities removed the child to the home of his mother.

The other woman then took legal action to obtain the return of the child, first seeking a writ of habeas corpus and then in September filing a motion for custody. She claimed the mother was not a proper custodian of the child and said the child’s best interest would be served by giving custody to her.

Equitable Adoption

On January 25, Carson, the guardian ad litem, filed a motion for temporary custody and a petition for declaration of equitable adoption. She asked that the child be declared to be the child of the other woman by equitable adoption.

After a two-day trial in April, Frawley entered his order on May 7.

Frawley began by listing what courts must do to respond to the “social fragmentation and the myriad configurations of the family” that must now be dealt with.

He said courts must re-examine the theory that a child may have only biological parents and adopt a more flexible “functional approach: as opposed to the traditional, stricter “formal approach” for defining family.

‘Equitable Parent’

Frawley then announced that the court would adopt the doctrine of “equitable parent,” which is analogous to the doctrine of “equitable adoption.”

An equitable parent, he said, is one who provides for the physical, emotional and social needs of a child and demonstrates that:

  • he or she had physical custody of the child for an extended period;
  • his or her motive in seeking parental status is his genuine care and concern for the child; and
  • his or her legal relationship with the child began with the consent of the child’s legal parent.

The other woman met these tests, Frawley said, and he declared that she is the equitable parent of the child.

Choosing The Test

Frawley then discussed the tension between the rights of biological parents to the custody of their own children and the interests of the state asparens patriae in the child’s welfare.

Interfering with the parents’ right of custody is usually based on the parent’s fitness, Frawley said. But the “parental unfitness” test does not sufficiently protect a minor child’s welfare.

In visitation disputes, on the other hand, the fitness of the biological parent is not determinative. Rather, continuing contact with the child is the issue, he said.

Frawley rejected both the “best interests” test and the “parental unfitness” test. Instead, he adopted the “actual detriment to the child” test, quoting from a case decided in the state of Washington in 1981.

Applying that test to this case, Frawley said the other woman could be awarded custody and visitation rights with the child, even though the mother was not unfit, if the child’s development would be detrimentally affected by eliminating contact with the other woman.

Expect Teasing

Frawley recognized that the child may endure teasing because he lives in a lesbian household.  But he said the court could not deprive the other woman of custody or Visitation “simply because she pursues a life-style at odds with the norm.”

Besides, despite the mother’s denials, Frawley said he believed she also engaged in homosexual activity, including an affair with the other woman.

There was also a constitutional question, Frawley thought. To refuse children of homosexual parents as a class the rights and protections afforded children of heterosexual parents would violate the Equal Protection Clause.

Homosexuals are not “unfit per se” to parent, Frawley said, and sexual orientation, alone, is not a sufficient basis for denying custody or visitation. Custody and visitation should be determined on the basis of the child’s needs, rather than the sexual preferences of the parent.

Frawley said he did not find the mothers testimony credible. He rejected her claim that she had only delivered the child to the other woman for a visit, not to stay.

And he found from the testimony of the other woman and her babysitter that the other woman had “formed a family unit” with the child and that she had formed a strong bond with him.

He also found the other woman “would not have accepted the minor child from [the mother] if she thought she would not get to keep the minor child.”

Detailed Orders

Frawley granted both legal and physical custody to the biological mother. He also entered orders requiring the two women to share equally in making decisions for the child’s upbringing and set up a visitation schedule so each woman would have the child exactly the same amount of time.

He included precise details on the number of telephone calls between the child and each parent (one 15-minute call between 7:00 and 8:00 p.m., three nights per week); and the means of exchanging custody (one parent remains in her vehicle and allows the child to walk unattended between the vehicle and the residence, where the other parent remains).

In his orders, Frawley did not specifically declare the other woman to be an equitable parent of the child. However he did refer repeatedly to “each parent.”

Child Support

Frawley did not order either parent to pay child support.

He found the mother, who was unemployed, received $1,344 per month in welfare benefits and spent it all. The other woman netted $992.40 per month at her job and spent almost all of that.

He noted that the child support had not been determined in accordance with the child support guidelines, but he did not make a finding that child support determined in accordance with the guidelines was unjust or inappropriate.