New NH Holding Out Opinion

I know I’ve been silent for quite a while. Bit of a break. But there’s a new opinion that has brought me back to the keyboard. It’s from the Supreme Court of New Hampshire and is yet one more case of the breakup of a lesbian family. (Sadly you’ll find a number of those on the blog. Because the legal status of lesbian co-parents can be unclear there is often the opportunity for litigation if things get messy.)

For the purposes of its decision the court took the facts as stated by the petitioner, Susan B.   I will do the same.

Susan and Melissa D met in 1997.  They held a commitment ceremony (no legal marriage that time) in 1998.   They wanted to have a family and bought a house together.  Melissa gave birth to Madeline in 2002.   She was conceived using sperm from an anonymous donor who shared Susan’s Irish heritage.

Many details seem to confirm Susan’s status as a parent (and here I mean social status):

Susan and Melissa decided to give Madelyn Susan’s middle and last names.

Susan and Melissa were both named as Madelyn’s parents in the birth announcements sent to friends and family and printed in the local newspaper, as well as in a “dedication ceremony” held in the Unitarian Universalist Church when Madelyn was a year old. Susan was listed as Madelyn’s parent in her preschool documents and in her medical records. Susan was involved in the daily care of Madelyn, and Susan and Melissa jointly made all decisions involved in raising Madelyn, including decisions regarding health care, education, and religion.

(page 2).  Apparently Susan could not adopt so she became a guardian to Madeline.

All went well until 2008 when Madelyn was six.   At that point the two women split up and Melissa and Madelyn moved in with Eugene who Melissa eventually married.   For five more years Susan maintained her relationship with Madelyn much as a separated parent would.  She paid child support.  She was actively involved in Madelyn’s life.

In February, 2013 (by which time Madelyn must have been about 11) Melissa did what she could to terminate Susan’s role in Madelyn’s life.  She stopped cashing checks, ended visitation, and cut lines of communication with the child.   (Melissa said this reflected Madelyn’s wishes, which could of course be true.   But if Susan had been a legal parent, Melissa’s assertion about Madelyn’s wishes would never have justified her unilateral actions.)

Then Melissa sought to terminate the guardianship, apparently so that Eugene could adopt Madelyn.   Susan objected, the court rejected her objection, and this appeal followed.

There are at least two arguments–closely related–that might seem to apply in a case like this.   First, Susan might claim to be a de facto parent.   In a number of states (Washington is one) a person who is in fact like a parent for long enough becomes a legal parent.  (This is an imprecise way of putting things but it captures the general idea.   Check the tag for “de facto parent” to see more on the blog.)

There’s a second way, though, that is actually a simpler path.   Nearly all states have a “holding out” provision.    These provide that when a man (it is traditionally a gendered standard) accepts a child into his home and presents the child to the world as his child, then he is a parent.  New Hampshire has just such a provision:

I. Notwithstanding any other provision of law, a man is presumed to be the father of a child if:

. . .

(d) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his child.

The problem, of course, is that Susa is not a man, nor can she be presumed to be a father.   This is the main focus of the Court’s analysis.  It concludes that consistent with a preference for gender neutral law, the provision quoted above should apply to Susan, too.

The point of the provision is to secure the child’s relationships.    This provision is often the reason why a child has two legal parents as opposed to only one.    These facts depict exactly the sort of scenario where this makes sense.  Susan was, in every sense but genetics and law, a parent of Madelyn for many years.   To permit Melissa to destroy that relationship because it suits her to do so is to damage both Susan and Madelyn.  Of course, if Susan has in some way become manifestly unfit, her rights can be terminated.   But she cannot simply be discarded because she has served out her usefulness.   Thus, the presumption protects her as it would protect a man who performed in the same way.

As the court notes, the presumption is based on behavior, not biology.   That’s really the whole point of holding out–it’s about how people act.  I’m happy to say I think the court got this one right, in a very nicely written opinion.



11 responses to “New NH Holding Out Opinion

  1. i object to the holding out doctrine altogether because it makes it far to easy for some guy to walk off with someone else’s kid. i realize though that the law is on the books and so has to be dealt with, but i personally am not a fan of this approach.
    For me, the kid’s age is key. if she was 2 years old i might be inclined to side with the bio mother, but she is nearly 12. her mom has no right to go about cutting off a relationship at this point.
    but i can see that this point is less established in the law. too bad.
    btw at what age do kids have a say in this matter? seems to me that the kid will be approaching that age shortly.

    • I wouldn’t be surprised if the kid is past that age by the time this is all settled and final in court.

      • You could be right and that’s rather a sorry commentary on law. Certainly we could reach the point where the child’s wishes become a more significant factor.

    • I take it that what you mean is that the bar is set too low? That it is too easy to get in under “holding out?”. De facto and holding out are very similar except that 1) historically holding out has been for men only and 2) the bar is higher in de facto. Perhaps the key is a unified doctrine for everyone (not one just for men) and then setting the bar just right. Whatever just right is, of course. (Easier said than done–and it means leaving a lot up to judges.).

      As for the kid’s wishes: These may be taken into account in different degrees at different ages. Courts can be reluctant to do it since they don’t want to encourage parents to manipulate a child’s emotional attachments. To my mind, that is a proper concern. But of course, it’s very hard to make children see/spend time with people they don’t want to see/spend time with, even if they arrived at not wanting to in a manipulative fashion. All of which is to say there’s no easy answer to the “when do children count?” question.

      • With kids who are almost adults, the child running away would be a possibility to consider as well. There was a case not long ago where two kids kidnapped by their dad as babies were located at ages 16 & 17. They were taken away from the dad, but put in foster care with a local family they knew really well already, rather than with the mom, even though she was an innocent victim. The rationale was they were almost adults and should get some say, and there was a risk they would just run away from the mom given how old they were. If a kid is almost an adult I’d say forcing a relationship could be counterproductive as well. They will probably resent the custody change and be more likely to cut the parent off at 18 once it’s their choice – while maybe if they weren’t forced they’d mature a bit and come to desire the relationship as an adult once it is their choice.

        • Indeed, indeed. And this is the problem with the passage of time. Surely the mother in the case you describe was wronged, but given the passage of time, it may be impossible to make it right. And you really cannot force a child–much less a teenager–to have a positive relationship with a particular person.

      • Also, I guess I feel like what is required for holding out/de facto needs to be really clear – so a legal parent can figure out if they can encourage a positive stepparent relationship without giving that person legal rights if the relationship ends. I have a child who I am the only legal parent of, and while I really have no interest in dating at all, hypothetically, if I did have that interest, I’d feel I’d have to discourage any positive relationship at all, in a long term relationship, for fear it might be considered a legal parental relationship, because I’d want to remain the only legal parent if the relationship were to end.

        • I think this is a really important point. It should be clear when a person will cross the line from being a nice adult in a child’s life to a fully recognized legal parent. That’s true to protect any existing parents, as you suggest here, and also to protect the nice adults. It’s a huge difference in our legal culture–being a legal parent/not being a legal parent.

          So I totally agree that a bright line–one that is clearly defined–is important. But it also turns out to be hard to do it that way. Traditional holding out doctrine actually tries for that bright line by keeping things simple–take the child into home, two years, starting at birth and present to the world as “your” child. By contrast de facto is messier–not so bright–often turns on something like “acting like a parent” or “performing a parent-like role.” There’s a reason for flexibility, of course. What about the child who is held out for one day less than two years? A bright line rule says that child doesn’t get a legal parent while a flexible rule might forgive the shorter time.

          So I think you have to make a tradeoff as you draft the rules–flexibility (to take circumstances into account, to avoid one size fits all) vs. clarity.

          I don’t for a minute mean to undermine your point–you’re quite right about how we might inadvertently discourage people from permitting children to form positive relationships. I suppose it is about getting the balance right–which isn’t easy.

      • i also think the holding out doctrine is outdated. its based on the idea that men and only men are financially responsible for children and thus the state is eager to nab any man available. its also assumes that men would not ‘hold out’ a child as their own unless they were biologically related.

        • I think there are different ways of looking at holding out and, depending on the way one looks, I might agree with what you say or not.

          So for instance, I think it is outdated to have a holding out presumption that applies to men but not women. I would suggest that the reason holding out requires so little (much less than de facto) is that this is all we expected of a male parent–that he’d take a child into his home and present it to the world as his. Why have low expectations of men as parents and not similarly low expectations of women? That would be dated assumptions about gender and parenting.

          I’m not sure about your assumption that holding out was tied to an assumption of biology, although it is often the case that holding out matches biology (and in some cases where it doesn’t, the man holding out thinks it matches biology.) There have always been stories (fairy tales, myths) about people who take children found on the doorstep into their homes. We’ve always appreciated this kind of tale. And I think we’ve also always understood that the well-being of those children depends on the connection to the person who took them in, even if there’s no genetic connection in sight. A doctrine like holding out or de facto is meant to protect the actual existing social/psychological relationships–no matter what its origin.

          In 2000 the folks who write the Uniform Parentage Act took “holding out” out of the UPA draft. Their reasoning was that it was a proxy for biology/genetics and that given easy DNA testing we didn’t need it any more. By 2002 they’d put it back–because many people argued that it isn’t just a proxy for genetics–it’s about actual relationships that exist for the child. Viewed in this light, I don’t think I’d say holding out is out-dated.

  2. Susan Brackett

    Thank you Julie for writing about my case in the NH Supreme Court. As of today we still have not been given a date at the Family Court level. So as time keeps going on the separation from my daughter continues. I realize the longer this goes on the more my daughter will be alienated against me. I am willing to go slow with the process of reunification .I only hope her other mom will be willing to do the right thing.I am also deeply in debt due to lawyer fees and am trying to raise funds to continue my fight. If anyone has interest in helping please contact me. Again thank you for writing about my story and if you like I will keep you posted

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