Are you my mother? Missouri denies custodial rights to same-sex parent.

AuthorMiller, Emmalee M.

White v. White, 293 S.W.3d 1 (Mo. App. W.D. 2009), transfer denied, No. SC90330, 2009 Mo. LEXIS 474 (Mo. Oct. 6, 2009).


    Who should qualify as a parent? Courts have grappled with this question for decades. To one court, "[t]he best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate.... Public authorities cannot improve on nature." (1) Yet in a country where nearly four out of ten babies are born outside of wedlock, (2) approximately ten million children are raised by same-sex parents, (3) and about forty to forty-five percent of all marriages end in divorce, (4) few children are born to two committed, biological parents who raise their child together. Faced with this reality, some courts have allowed third parties to establish custody and assert parental rights through alternative doctrines to traditional parentage, such as de facto, in loco, and equitable parentage. (5) However, these alternative doctrines remain controversial and not all states have adopted or applied them in the same way. (6)

    Recently, the Missouri Court of Appeals, Western District held that a nonbiological parent lacked rights to the child of her former lesbian partner in White v. White. (7) The same-sex parents planned the pregnancy together, shared the costs, and jointly raised the child. (8) Yet, without a biological contribution or a marriage license recognized by the state, the court refused to grant the plaintiff parental rights. (9)

    This Note argues that Missouri should adopt a doctrine of alternative parentage that expands the definition of "parent" to include those in same-sex relationships who are not the biological or adoptive parents. (10) In Part II, this Note analyzes the facts and holding of White. Next, in Part III, this Note explores the Uniform Parentage Act and introduces the nontraditional forms of standing created by courts to allow third parties to obtain custody rights. Then, Part IV examines the court's rationale in White. Lastly, Part V explores why the court erred in its decision and why courts should recognize alternative forms of parentage. This Note concludes that by refusing to recognize the rights of same-sex parents, Missouri courts not only discriminate against gay parents, but they also discriminate against their children by refusing to recognize their rights to two legal parents.


    In 1997, Leslea White and Elizabeth Michelle Crowe (Michelle) entered into a committed, intimate, same-sex relationship that exhibited many of the same characteristics as that of a heterosexual couple. (11) From the beginning of the relationship, the couple discussed having children and agreed to raise them together. (12) Leslea claimed that before the birth of their children, she and Michelle agreed that together they would raise and support any children born during their relationship. (13) Leslea alleged that this understanding continued throughout the relationship. (14)

    Subsequently, both women conceived a child by artificial insemination through the donation of the same anonymous sperm donor. (15) According to Leslea, the couple chose to conceive in this manner in order to create a biological bond between themselves and their children, in addition to the psychological bond that they hoped would develop by raising the children together. (16) In this way, Michelle gave birth to C.E.W. on December 15, 2001, and Leslea gave birth to Z.A.W. on July 27, 2004.17 The women shared the costs of the inseminations, pregnancies, and births. (18) Leslea also asserted that they attended the pregnancy-related medical appointments together and supported each other during the births, including cutting each other's umbilical cord. (19) Additionally, on September 12, 2002, after the birth of the couple's first child, Leslea claimed that Michelle legally changed her last name from Crowe to White so that all of the members of the family would share the same last name. (20)

    The women's relationship lasted eight years. (21) During that time, they moved in together and raised the children as siblings. (22) The children called Leslea "Mommy" and Michelle "Mama. (23) After the women separated in November 2005, they voluntarily shared custody of the children. (24) However, in late May 2006, Michelle unilaterally terminated this arrangement against Leslea's wishes. (25) She refused to allow C.E.W. to have any contact with Z.A.W. or Leslea. (26) She would not accept money for C.E.W. from Leslea, stopped having any contact with Z.A.W., and refused to contribute financially to Z.A.W.'s welfare. (27)

    As a result, on January 18, 2007, Leslea filed a petition for declaration of maternity, order of custody, and order of child support on her own behalf and as next friend for minors C.E.W. and Z.A.W. in the Circuit Court of Boone County, Missouri. (28) Leslea claimed that the children were deprived of the care of two parents and the companionship of one another. (29) Her petition also stated that neither child has a natural or presumed father. (30) As a result, she asked the court to find both women the legal parents of the children and award joint legal and physical custody. (31) Additionally, she asked the court to order both women to pay child support. (32) In the alternative, if the court ruled against joint legal and physical custody, Leslea asked for primary physical custody of the children and visitation rights for Michelle. (33)

    In response, Michelle filed a motion to dismiss Leslea's petition for both lack of standing and failure to state a claim upon which relief could be granted. (34) In her motion, Michelle claimed that Leslea had no standing under the Missouri Uniform Parentage Act (the MoUPA) because C.E.W. is not Leslea's biological child. (35) She further argued that no statute enables a non-biologically related female to claim maternity rights to a child. (36) Additionally, Michelle claimed that since the MoUPA, as the "exclusive means" of establishing parentage in Missouri, does not acknowledge the creation of a de facto, equitable, or psychological parent-child relationship, the terms are in-applicable. (37) In response, Leslea argued that as an "'interested party,'" she had standing under the MoUPA, which would allow the court to exercise parens patriae authority by finding Michelle and Leslea to be de facto parents to Z.A.W. and C.E.W. (38) In the alternative, Leslea claimed that she could also have standing as a third party through the common law "exceptional circumstances" doctrine. (39)

    After Leslea filed her petition, a family court commissioner of the Circuit Court of Boone County appointed a guardian ad litem to represent the children. (40) After holding several hearings, the family court commissioner denied Michelle's motion to dismiss. (41) Michelle was granted a rehearing before a family court judge, who dismissed Leslea's petition without prejudice and without indicating a reason for the ruling. (42)

    Leslea conjectured that the court dismissed her claim for lack of standing and failure to state a claim. (43) She filed ten points on appeal with the Missouri Court of Appeals, Western District. (44) Applying de novo review, the Missouri Court of Appeals, Western District affirmed the trial court's decision and dismissed Leslea's petition, reasoning that (1) Leslea lacked standing under the MoUPA, the alternative parent doctrines, and equitable estoppel; (2) her claim did not fall under the exceptional circumstances doctrine or a contractual assumption made by the parties; and (3) she had no constitutionally valid claims under due process, equal protection, or the open courts guarantee. (45)


    Traditionally, courts afforded only biological parents legal rights to custody of a child. (46) However, as the number of traditional families dwindles, states and governmental entities create flexible laws and theories to adapt to these changes. (47) The Uniform Parentage Act (UPA) promulgated the theory that parental rights should arise from the relationship between the parent and child, rather than the relationship between the parents. (48) Although Missouri adopted a majority of the UPA, the state's courts do not consider the UPA the "exclusive method for determining paternity"; (49) even so, they have yet to adopt other nontraditional theories to resolve cases where two same-sex individuals assert parentage. (50)

    1. Beginning with Biology

      The Supreme Court has ruled that the Fourteenth Amendment of the United States Constitution protects a biological parent's right to custody of his or her children. (51) In fact, a parent's custody right is "perhaps the oldest of the fundamental liberty interests recognized by [the Supreme Court]." (52)

      However, as a result of the increased rate of divorce, the disintegration of the nuclear family, and the increase in same-sex parentage, children today are less likely to live with two biological parents. (53) Thus, the scope of protection that the Supreme Court grants to custodial rights has become increasingly important. According to some, Supreme Court precedent suggests that a parent's right to custody is determined more by the parent's relationship with the child than by the parent's biological tie to the child. (54) Yet, the Supreme Court has never identified the custody rights of a third-party parent in a same-sex relationship. (55)

      Even if third parties continue to gain more custodial rights and courts focus on child-parent relationships, "the genetic bond of parenthood continues to remain a central theme for redefining family relationships." (56) State and federal courts have frequently placed children with their formerly absent biological fathers and mothers over third parties who cared for the children and developed deep relationships with them. (57) Courts have also maintained that a child can only have two legal parents, regardless of whether...

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