Bethany v. Jones

378 S.W.3d 731 (2011)

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Nature of the Case

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Facts

M and SSP were same-sex partners from 2000 until 2008. They purchased a home together, with both of their names listed on the mortgage. They also began to take steps toward having a family. A male friend of SSP agreed to donate sperm. M agreed to carry the child. Through the process of artificial insemination, M became pregnant, and a child was born in 2005. They chose to give the child SSP's last name and SSP's grandmother's name as the child's middle name. M and SSP intended to co-parent the child. At the time of conception, M considered SSP to be the child's parent. SSP remained at home as the child's primary caregiver. The referred to M as 'mama' and to SSP as 'mommy.' The child formed close relationships with members of SSP's family, calling SSP's parents 'Grammy' and 'Poppy.' In 2008, they ended their romantic relationship but agreed to continue co-parenting. M who had entered into a relationship with another woman decided that it was no longer in the child's best interest to have contact with SSP citing such factors as instability, depression, safety of the child, and truthfulness of SSP. SSP filed the instant action for custody alleging breach of contract based upon equitable estoppel. M claimed that SSP was not a biological parent, nor was there any support for a finding that she stood in loco parentis to the child. SSP argued that she did stand in loco parentis and that there was ample statutory authority for awarding her custody of the child on that basis. SSP also argued that equitable estoppel also applied from their agreement. The court ruled in favor of SSP based on the doctrine of in loco parentis. It found that SSP cared for the child's every need every day for three and one-half years; fed, bathed, clothed, nurtured, supervised, and supported the child, and performed every other act a parent would do for their child, that both had agreed to co-parent the child. The court awarded SSP visitation rights. M appealed.