de facto parent status

Elisa B. and Emily B. entered into a lesbian relationship in 1993 and began living together six months later. They introduced each other to friends as their partner, exchanged rings, opened a joint bank account, and believed they were in a committed relationship. They discussed having children and decided that they both wished to give birth, with Emily as the stay-at-home mother and Elisa as the primary breadwinner because Elisa earned more than twice as much money as Emily. They chose a donor at a sperm bank so the children would be biological brothers and sisters. Elisa became pregnant in February 1997 and gave birth to Chance in November 1997. Emily began the insemination process in June of 1997 and became pregnant in August 1997, giving birth prematurely in March 1998 to twins Ry and Kaia. Ry had medical problems including Down’s syndrome and required heart surgery. Elisa was present when Emily was inseminated and picked up additional sperm to inseminate Emily at their home. They jointly selected the children’s names, joining their surnames with a hyphen. They each breast-fed all of the children. Elisa claimed all three children as her dependents on her tax returns and obtained a life insurance policy on herself naming Emily as the beneficiary. Elisa’s parents referred to the twins as their grandchildren, and her sister referred to Elisa as the twins’ mother. Elisa treated all of the children as hers and told a prospective employer that she had triplets. Elisa and Emily identified themselves as coparents of Ry at an organization arranging care for his Down’s syndrome. Elisa and Emily separated in November 1999. Elisa promised to support Emily and the twins as much as she possibly could and initially paid the mortgage payments of approximately $1,500 per month on the house in which Emily and the twins continued to live, as well as other expenses. When they sold the house and Emily and the twins moved into an apartment in November 2000, Elisa paid Emily $1,000 a month. In early 2001, Elisa stated she lost her position as a full-time employee and told Emily she no longer could support her and the twins. At the time of trial, Elisa was earning $95,000 a year. Emily applied for aid. On June 7, 2001, the El Dorado County District Attorney filed a complaint in superior court to establish that Elisa B. is a parent of two-year-old twins Kaia B. and Ry B., who were born to Emily B., and to order Elisa to pay child support. After a hearing, the superior court rendered a written decision on July 11, 2002, ordering Elisa to pay child support in the amount of $907.50 per child for a total of $1815 per month. Elisa petitioned the Court of Appeal for a writ of mandate, and the court directed the superior court to vacate its order and dismiss the action. The Supreme Court granted review.

In 1976 appellees consisting of individual foster parents and the Organization of Foster Families for Equality and Reform filed a civil rights class action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York. They acted on behalf of themselves and foster children who had resided in their homes for a year or more. They named as defendants various New York State and New York City child welfare officials. The suit sought declaratory and injunctive relief against the pre-removal procedures provided in state statutes and regulations. The District Court appointed independent counsel to represent the foster children to forestall conflicts. It also granted leave to natural mothers to intervene as defendants. The court certified a class of foster parents and children who had lived together for more than one year. A divided three-judge District Court held the existing pre-removal procedures constitutionally defective. It permanently enjoined their enforcement. Four appeals reached the Supreme Court from the New York City officials, New York State officials, independent counsel for the children, and intervening natural mothers. Under New York's foster care system most placements occur through voluntary written agreements. Natural parents and authorized agencies execute these agreements to transfer care and custody of the child to the agency. The agency then places the child in a licensed foster home under a contract allowing either party to terminate at will. Natural parents retain legal guardianship and an obligation to visit and plan for the child's future. Children may also enter foster care by court order following findings of abuse, neglect, or delinquency. When an agency decides to remove a child, state regulations require ten days' written notice to foster parents except in emergencies. Opportunities exist for conference and fair hearing. Additional procedures apply in New York City. Judicial review is available under § 392 after eighteen months. The record showed that the median duration of foster care in New York exceeded four years. Many children experienced multiple placements and limited contact with natural parents.