Case Summary: Della Corte v. Ramirez, No. 11-P-451, MA Appeals Ct., 2/2/2012

Monday, March 26, 2012

By Alexis B. Kaplan, Esq.

At issue in this case is joint legal custody of a child after a same-sex divorce, and the case follows the principles of Goodridge in reading statutes related to marriage and parentage as gender neutral.

Della Corte, the biological mother and custodial parent with regards to physical custody of the child, appeals from the trial court’s rendering of shared legal custody with Ramirez and offers several arguments in support of sole legal custody on the basis that Ramirez was not a legal parent of the child in question.  The court does not accept any of Della Corte’s arguments.

Della Corte first argues that because the parties were not married at the time of the child’s conception, Ramirez as a non-biological parent does not fit the definition of a legal parent according to G.L. C. 46,  § 4B, “Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.”  The court disagrees with Della Corte’s reading of the statute, as the child was conceived just prior to the couple’s marriage with the explicit support and consent of the non-biological parent, and the child was born while the parties were married.  The court notes that not only does the statute not consider whether or not the parties are married at the time of the insemination, but only at the time of the birth, but that following Goodridge “husband” in the statute must be read to be gender neutral as “spouse.”  Accordingly, Ramirez is a legal parent according to this statute.  Additionally, the precept that a child born of a marriage is presumed to be the legal child of the two married individuals also requires Ramirez to be considered a legal parent.

Della Corte’s next argument is that Ramirez cannot be considered a legal parent as she had not adopted the child.  Again following Goodridge, this argument does not stand because Massachusetts must consider a child born in a same-sex marriage to automatically be a child of both spouses, the same as in a heterosexual marriage.

Additionally,  Della Corte had previously accepted and acknowledged Ramirez as a parent of the child: in listing Ramirez on the child’s birth certificate as a parent, in the parties’ separation agreement where Della Corte explicitly acknowledges Ramirez as a parent, and also agreeing to joint legal custody and visitation while accepting child support in the separation agreement.

The court rejected Della Corte’s suggestion of any material change of circumstances, aside from the fact that the child aged slightly.

Della Corte’s final argument was the best interests of the child test, though the court found no basis to review this standard as there had been no change in circumstances.  It should be noted that there was also a lengthy guardian ad litem report involved in the case.