Oklahoma Bar Journal
Beyond Biology: Schnedler v. Lee and Third-Party Custody
By Virginia Henson
The Supreme Court opinion in Schnedler v. Lee,1 pushes the boundaries of the rights of nonbiological parents – persons who have acted as parents who are not biologically related to the child. With the increasing acceptance of same-sex relationships, many of the cases, like Schnedler, arise from the request by a nonbiological same sex partner for custody rights to a child of the relationship. Most of the same-sex cases present to the appellate court as standing cases – does the nonbiological parent have standing to seek visitation with the child? This question has been answered by the case law. However, the case law also affirms a right for the child to have relationships with persons the child views as parents. The dicta in the cases, particularly in Schnedler, may foretell a willingness by the court to reform the law around third-party custody and visitation.
In Schnedler, the biological mother, Lee, and Schnedler were in a relationship for eight years. They conceived the child with the help of a sperm donor. The sperm donor saw the child periodically and paid some support, although Schnedler was unaware of this. After the end of the relationship, Lee refused to allow Schnedler to have a relationship with the child. Schnedler sued. The sperm donor and the biological mother both objected to Schnedler being involved with the child. The trial court found that since both biological parents objected, Schnedler had no standing to request custody rights. The Court of Appeals affirmed the trial court. The Supreme Court reversed and established a three-part test in same-sex custody actions to give the nonbiological parent standing. First, the parties must have engaged in family planning with the intent to parent jointly; second, the nonbiological parent requesting custody rights must have acted in a parental role for a length of time sufficient to have established a meaningful emotional relationship with the child; and third, the nonbiological parent must have resided with the child for a significant period while holding out the child as his or her own child.
The progression of these kinds of cases continues to expand rights for same-sex parents and their children in custody cases. The series of cases began with Eldredge v. Taylor.2 In Eldredge, the same-sex couple had entered into a civil union in New Zealand, where such unions were legal. They agreed to have children and used an anonymous sperm donor. They entered into a formal parentage agreement. Taylor was the biological parent, but the children were given the surname Eldredge at birth. After the relationship terminated, Taylor asserted her rights as the biological parent and refused to allow Eldredge to have a relationship with the children. Eldredge’s custody suit was dismissed at the trial court level for lack of standing, since she lacked a biological relationship with the children.
Eldredge raised the following questions on appeal:
- whether a person has standing to seek a best-interest-of-the-child hearing when the sole biological parent relinquished some of her parental rights to the person by entering into a written co-parenting agreement;
- whether the doctrine of in loco parentis can extend to a person who is not legally related to a child when there is no allegation the sole biological parent is unfit;
- whether Title 10, Section 7700–204(A)(5) of the Oklahoma Statutes creates a presumption of parentage in a woman who holds herself out as a parent and resides with a child for at least two years; and
- whether a person who is not legally related to a child can have a constitutionally protected liberty interest in her relationship with children she has helped bring into the world and has continued to raise and support or, alternatively, whether children have a constitutionally protected liberty interest in their relationship with such a person.
The Supreme Court addressed the first question and declined to address the last three. It found that the co-parenting agreement could be enforced as a contract and restored Eldredge’s standing.
The next case in the series was Ramey v. Sutton.3 In Ramey there was no parentage agreement and no civil union. Sutton was the biological parent and claimed Ramey was not entitled to parental rights because, unlike in Eldridge, there was no contract to enforce. The trial court agreed. The Supreme Court reversed saying Ramey stood in “in loco parentis,” and therefore could compete for custody and visitation with the child, saying:
¶17...This couple and more importantly, their child, is entitled to the love, protection and support from the only parents the child has known. Sutton’s argument must fail in light of the equities before this Court. Ramey is recognized as being in loco parentis to their child and is entitled to a best interests of the child hearing.
¶19 This case is intended to recognize those unmarried same sex couples who, prior to Bishop (cite omitted) and Obergefell, (cite omitted) entered into committed relationships, engaged in family planning with the intent to parent jointly and then shared in those responsibilities after the child was born. Public policy dictates that the district court consider the best interests of the child and extend standing to the nonbiological parent to pursue hearings on custody and visitation. This decision does not extend any additional rights to step-parents, grandparents, or others. Accordingly, we find the district court erred in granting the motion to dismiss, and that Ramey has standing to pursue a best interests of the child hearing.
Again, although the issue presented to the appellate court was a standing issue, the appellate court dicta seems to indicate both the person in loco parentis and the child have a protected interest in maintaining a relationship. The court then seeks to limit its decision by saying that the decision should not be read to extend rights to other nonbiological relationships. However, the court does not say how another nonbiological “parent” (a person acting in loco parentis) is different from a same-sex parent or how a child from a same-sex relationship is more protected than a child from another type of relationship (such as a stepparent or guardianship relationship where the child has essentially been raised by a nonparent.) The opinion appears to raise equal protection issues when it limits the protections for a nonbiological parent to same-sex couples.
The dicta in Schnedler is even more inclusive. The case came to the appellate court as a standing issue but there is significant dicta which expands the rights of the nonbiological same-sex parent. Can the court expand these rights for same-sex parents while limiting rights for other litigants not in a same-sex relationship? For example, in Schnedler, the court set forth the three-step test above to give standing to a same-sex parent. However, the court abandoned the “in loco parentis” analysis set out in Eldredge, in favor of a parity standard, saying:
¶20 Indeed, “a person standing in
loco parentis is one who acts ‘in the place of a parent.’” United States v.
Floyd, 81 F.3d 1517, 1524 (10th Cir. 1996). Consequently, in loco parentis status – at root, a legal fiction – is “by its very nature, a temporary status.” Id. Temporary and uncertain parental status only exacerbates the frequency of cases like today’s, and creates an inherently more unstable environment for the children of same-sex couples. Their children see them as mom or dad. The law should treat them as such.
Eldredge and Ramey stand for the proposition that the same-sex parent has standing but not the same standing as a biological parent because the standing is based on an “in loco parentis” analysis which is by its nature temporary. Schnedler abandoned that analysis, finding:
¶23 A non-biological same-sex parent stands in parity (emphasis added) with a biological parent. Once an individual has standing, the court shall adjudicate any and all claims of parental rights – including custody and visitation – just as the court would for any other legal parent, consistent with
the best interests of the child.
¶24 Lori [Schnedler] did not act in the place of a parent; she is a parent.
The dissent (by Justice Darby) recognizes the language used by the majority as broad and worries about the extension of the opinion, saying: “¶1 I believe the Court should use judicial restraint in this matter and base the holding on the narrowest grounds possible.” The dissent compares the language in Schnedler to an “advisory opinion,” and would limit the ruling to the “narrowest grounds possible.”
The question is whose rights should be protected? The interests of the parents or persons the child considers parents and the interests of the child are often at odds. Oklahoma law provides that any proceeding to repudiate the presumed paternity of a child must be filed within two years4 to protect the child. The law is well settled that a biological parent cannot be deprived of custody of a child unless the parent is unfit, unsuited or unavailable, or the custody in the parent will cause actual harm to the child. The Oklahoma Supreme Court in Matter of Baby Girl L.5 held that a prospective adoptive couple may be awarded custody of a child instead of a biological parent if the removal of the child will cause severe and lasting psychological harm to the child. The court found there was no due process claim for a prospective adoptive parent to a continued relationship with the child after a failed adoption but recognized the child may have a countervailing constitutional interest to be balanced against a biological parent’s interests. The court found that 10 O.S. §7505-6.4 controlled and after a failed adoption, the court must hold a “best interests” hearing to determine whether the type of harm described by the court would occur to the child if removed from the prospective adoptive parents. The court placed the burden on the prospective adoptive parents to prove by clear and convincing evidence that severe harm would occur.
Oklahoma statutes in grandparental visitation cases require the grandparent prove actual “harm” would occur if the visitation was not granted. Craig v. Craig6 and a mere “best interests” standard is not sufficient.
The court did not address in Baby Girl L. the types of questions set forth in Schnedler. That is, whether a nonbiological parent can approach custody in parity with a biological parent. Schnedler makes it clear this is the rule in same-sex couple cases, so long as the three-step foundation can be laid by the nonbiological parent. Presumably, the “in parity” language removes the burden of proof from the nonbiological same-sex parent and makes the determination amount to a best interests analysis. Baby Girl L. makes it clear in failed adoption cases, a “balancing test” cannot be used – that is the test is not which is the best home, it is whether there would be actual harm to the child if not placed with the biological parent. Schnedler holds that if the child is a child of a same-sex couple, the test is exactly that – which “parent” can best provide for the child.
Consider the following scenarios:
Scenario One. A heterosexual couple decides for whatever reason not to marry. The man adopts a child during the relationship with the consent of the woman, who cannot adopt because the parties are not married. The woman is the primary caretaker of the child and rears the child for many years. The man decides to leave the relationship and prevents the woman from having a relationship with the child. Does the woman have standing to seek custody or visitation? Ramey specifically denies parental rights to the woman, but there appears to be no rational reason why she wouldn’t have standing in parity with the adoptive father to seek custody under Schnedler.
Scenario Two. A child is left with grandparents for many years, and they are granted guardianship. The biological parents resolve whatever problems prevented them from taking custody of the child, but the child is now 5 years old. The biological parents seek to terminate the guardianship as “no longer necessary.” Assuming the biological parents are now fit, under 30 O.S. §4-804, the court must return the child to the biological parent unless it finds there would be actual harm. May the grandparents in this situation seek custody under a “best interests” standard in parity with the biological parent. Previous case law seems to imply the answer is “no.”7
To find that the same test does not apply in other cases where a person or persons who are not biologically related to the child may well violate the child’s rights to equal protection. If the standard is who the child psychologically considers a parent and who the child has love and affection for, regardless of biological relationship, to provide protection for the child only in same-sex relationship cases is problematic. These issues often arise in guardianship, grandparental, stepparent and adoption cases. It is not uncommon for a child to be reared in a home where there is no biological parent or in a home where one parent is not biologically related to the child. These relationships can go on for years, and the child can view these caretakers as parents.
The 14th Amendment to the U.S. Constitution provides equal protection. Essentially, similarly situated persons should not be treated differently under the law. As stated in Reno v. Flores,8 the Due Process Clause “forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Under what appears to be the current law in Oklahoma, a child of a same-sex union who has a nonbiological parent, whom the child psychologically views as a parent, enjoys the opportunity to be reared in the best home available. If that same parent is not in a same-sex relationship, even if the child views the nonbiological litigant as a parent, the same standards are inapplicable and the child must be returned to the biological parent unless the biological parent can be found to be unfit or the nonbiological litigant can prove by clear and convincing evidence that severe psychological harm will occur to the child if a relationship is not continued. If the state’s interest is in the welfare of children, there seems to be no rational reason to distinguish between the two types of nonbiological parents.
The law in this area is changing rapidly. It remains to be seen whether Schnedler can be extended into cases not involving same-sex relationships. Ramey made it clear the court’s decision in that case does not extend to other types of relationships, but that was before Schnedler granted parity status to a nonbiological same-sex parent and before the court abandoned the in loco parentis analysis, which makes all third-party custody temporary.
Later decisions by the court should help clear this up.
ABOUT THE AUTHOR
Virginia Henson is a sole practitioner with Virginia Henson PLLC in Norman. She received her J.D. from the OU College of Law in 1980 and focuses her practice on family law. She is a fellow of the American Academy of Matrimonial Lawyers.
- Schnedler v. Lee, 2019 OK 52.
- Eldredge v. Taylor, 2014 OK 92, 339 P.3d 888.
- Ramey v. Sutton, 2015 OK 79, 362 P. 3d 217.
- 10 O.S. §7700-607 (A). There is an exception when the biological father, the presumed father and the mother all agree, but even then the decision rests on the best interests of the child. 10 O.S. §7700-607 (C).
- Matter of Baby Girl L., 2002 OK 9, 51 P.3d 544.
- Craig v. Craig, 2011 OK 27, 253 P.3d 57.
- In re Guardianship of C.D.A., 2009 OK 47, 212 P. 3d 1207.
- Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed. 2nd 1 (1993).
Originally published in the Oklahoma Bar Journal -- OBJ 91 No. 5 (May 2020)