Lawyers from Senior Partners for Justice were key players in the recent case of R.D. vs. A.H., which was argued at the trial level by Richard Clarey and at the appellate level by Samuel Adams, both active members of Senior Partners. The case is significant because it reinforces the immutable pre-eminence of biology over care-giving in the context of custodial litigation. In order for biological or adoptive parents to be displaced by a de facto parent, guardian, foster parent or same sex spouse or partner of a biological parent, the latter must prove the biological/adoptive parent unfit by clear and convincing evidence. This contrasts sharply with the best interests standard which is applied when biological/adoptive parents are in dispute over custody. A de facto parent, guardian of a child, foster parent or same sex married spouse/partner of a biological parent may be a person to whom the law grants rights but it does not accord such persons, regardless of the label, the entitlements and presumptions of a biological/adoptive parent.

R.D. vs. A.H. was granted direct appellate review to the Supreme Judicial Court and decided unanimously by the Court (present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants,JJ). Senior Partners represented the unrelated female guardian (R.D.), who sought permanent custody of a child born out-of-wedlock, whom she had cared for during the child’s tender years. R.D. had been granted temporary custody pursuant to the guardianship statute, G.L.c.201 after the mother had been found unfit and the father had left the child in her care. R.D., (the Plaintiff below and the Appellant) argued that she should be awarded permanent custody of the child because: “(1) in a custody dispute between a legal parent and a de facto parent, custody should be awarded on the basis of the best interests of the child, regardless of whether the legal parent is fit, and that appointing her as permanent guardian of the child is in the child’s best interests; (2) in any event, she should be awarded custody in accordance with G.L.c. 209C, Section 10(a), a statute that concerns in part issues of custody in relation to children born out of wedlock; (3) the trial judge committed reversible error in excluding a tape recording of telephone messages left by A.H. on R.D.’s answering machine; and (4) the judge erred in failing to grant R.D. an automatic stay when she filed her notice of appeal in the Probate Court, and in denying her motion to stay.”

Justice Margot Botsford, writing for the entire Court, concluded that under the governing guardianship statute, G.L.c.201, Section 5, a legal parent is entitled to custody unless determined to be unfit, and that a determination of a legal parent’s fitness necessarily includes a consideration whether the legal parent is fit to further the best interests of the child. Accordingly, J. Botsford held that the trial judge’s finding that A.H. was not currently unfit was not clearly erroneous and the argument that the failure to grant a stay created reversible error was without merit.

The critical lessons to be learned about the hierarchy of ‘parenthood’ status from this case – and from the extensive and well documented statutory and case citations contained in the opinion – are the following:
1. The “best interests of the child” standard has a very limited application in the context of a custody battle; it is applicable only when the contesting parents are both “legal” parents (i.e., biological and/or adoptive).
2. The “best interests of the child” standard has wider application when visitation only is being sought – whether by a de facto parent, grand-parent or unrelated person seeking temporary guardianship.
3. Attacking a legal parent’s “fitness” is a daunting task in that the evidence must be ‘clear and convincing’. In the SJC case a multitude of instances of poor parental judgment/conduct, in evidence at the trial, were insufficient to meet this standard.
4. If a spouse in a same-sex marriage is not the biological parent, he/she must ensure status as a ‘legal parent’ through adoption of the child.
5. Same sex unmarried couples must ensure their status as ‘legal parents’ through adoption of the child if not biologically related to the child.
6. A de facto parent must ensure his/her status as ‘legal parent’ through adoption of the child if she/he is not biologically related to the child.
7. A de facto parent may have full financial obligations to the child and visitation rights with the child.
8. Under current law, a de facto parent will not prevail in a custody hearing against a ‘legal parent’ unless the ‘legal parent’ is proven unfit.
9. De facto parentage may be revoked if contact ceases to be in the best interests of the child.
10. Grandparent visitation with the child must be in the best interests of the child in the judgment of the custodial parent. Visitation may be ended upon a showing that the grandparent contact has ceased being in the child’s best interests in the judgment of the custodial parent.
11. It appears that in this decision the Supreme Judicial Court chose ‘form over substance’ to determine who the proper custodial parent should be. From the child’s perspective, the standard of care should be consistent regardless of how the law defines the provider of love and care. The decision gives no rationale for why there is a different standard for the biological/adoptive parent and all other caregivers.