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Doe v. Doe

Supreme Court of Idaho

June 7, 2017

JANE DOE (2016-34), Petitioner-Respondent-Cross Appellant,
JANE DOE I, Respondent-Appellant-Cross Respondent.

         2017 Opinion No. 60

         Appeal from the Magistrate Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Diane Walker, Magistrate Judge.

         The judgment of the magistrate court is affirmed in part and reversed in part.

          Cosho Humphrey LLP, Boise, for appellant. Stanley Welsh argued.

          The Law Offices of J. Scott Escujuri, PLLC, Boise; Emily Haan, San Francisco, CA; Ferguson Durham, PLLC, Boise, for respondent. Emily Haan argued.

          BRODY, Justice.

         This case requires us to resolve a custody dispute between Jane Doe I, Child's natural mother, and Jane Doe, the natural mother's former partner. During the course of Mother and Partner's relationship, Mother conceived a child via artificial insemination. After the parties separated, Partner filed a petition to establish parentage, custody and visitation with Child. Partner advanced two legal arguments to support her petition. First, she argued this Court's decision in Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989), provides an independent cause of action by which the court may grant custody to Partner. Second, she argues that she should be deemed a parent under Idaho Code section 39-5405, Idaho's artificial insemination statute, because she consented to the artificial insemination. As part of this argument, Partner contends that Idaho's artificial insemination statute violates Child's rights and her rights under the Equal Protection Clause of the United States Constitution by discriminating against children born outside of marriage. The magistrate court denied Partner's claim for parentage, but granted her visitation rights under Stockwell. Mother and Partner cross-appealed the magistrate court's decision.



         Mother and Partner were involved in a committed relationship from 2006 until 2012. The two did not marry because Mother did not want the legal commitment to Partner. Although not married, Mother and Partner jointly agreed to start a family using an anonymous sperm donor. Mother planned to have a child regardless of whether Partner participated, and Mother wanted Child to be biologically related to her.

         Partner was involved with the artificial insemination process. Before Child's birth, Mother and Partner consulted with an attorney regarding Partner adopting Child, but they were discouraged from adoption proceedings because the attorney believed that same-sex couples were prohibited from pursuing adoptions, although they were instructed that no law exists prohibiting same-sex adoptions. This consultation took place before this Court's decision in In Re Adoption of Doe, 156 Idaho 345, 326 P.3d 347 (2014), wherein we ruled that Idaho's adoption statute does not prohibit an unmarried woman from adopting her domestic partner's children. Mother and Partner did not pursue adoption.

         Throughout the pregnancy Partner attended prenatal appointments and was present during the birth. From February 2010 until June 2012, Mother and Partner coordinated their work schedules to care for Child and lived as a family. Mother and Partner's relationship deteriorated in 2012, and Partner moved out of the home. Partner did not attempt to have custody of Child, or take her with her when she moved out. Throughout the summer of 2012, Partner cared for Child when Mother was at work. Gradually, the time Partner spent caring for Child decreased. In January 2015, Mother prohibited Partner from contacting Child and rejected Partner's financial support. Mother told Partner that Mother was the biological parent, and that Partner had no legal rights to Child.

         Partner filed a Petition for Adoption, Guardianship, and Visitation in the magistrate court. Partner dismissed her adoption claim because Mother would not consent to it. Partner filed an Amended Petition to Establish Parentage, De Facto Parentage, and Custody and Visitation. Mother filed a motion to dismiss. The magistrate court dismissed the claim involving the parentage claim under Idaho's artificial insemination statute, but allowed the independent Stockwell claim for custody to proceed to trial. After the trial, the magistrate court granted Mother sole legal custody and primary physical custody of Child. It also granted Partner visitation rights. The magistrate court stayed the judgment, kept a temporary visitation order in place, and granted permission to seek an expedited appeal of the judgment to this Court. This Court granted the parties' expedited cross-appeals.


         ISSUES ...

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