By Alison Silber
Hunter v. Rose, SJC-11010
In 2003, a lesbian couple executed a declaration of domestic partnership in California, where domestic partnership laws grant same-sex domestic partners rights that are identical to those of marriage. In 2007, the couple moved to Massachusetts.
After the Plaintiff had several unsuccessful attempts at conception of a child, the Defendant gave birth to a daughter in August 2007. Both women contributed to the daughter’s care, although the Plaintiff was the primary caretaker due to the Defendant’s medical residency. In April 2008, the Plaintiff became pregnant, using the same sperm donor.
The parties’ relationship deteriorated, and the Defendant and daughter moved out of the couple’s home in October 2008. The Defendant ceased all communication with the Plaintiff by moving with the daughter to Oregon, cancelling the Defendant’s prior phone number, refusing mail from the Plaintiff, and refusing to respond to the Plaintiff’s other attempts at correspondence.
In November 2008, the Plaintiff filed a complaint for custody of the daughter. In December 2008, she filed an amended complaint in equity seeking sole physical custody of the daughter and unborn child, as well as a complaint for divorce. The Defendant acknowledged she wanted neither physical nor legal custody of the second child.
The Essex Probate and Family Court held a trial over November 2010 and January 2011. The Essex judge dissolved the registered domestic partnership, declared both parties legal parents of both children, granted Sole Legal and Physical Custody of the second child (another girl) to the Plaintiff, and Joint Legal Custody of the first daughter with Primary Custody to the Plaintiff. The Court awarded the Plaintiff attorney’s fees.
The SJC upheld the lower court’s ruling. First, the SJC affirmed that the registered domestic partnership was the equivalent of a marriage because that is the California law, and because a child’s welfare is promoted by having two parents. The Defendant is a legal parent of both children because both children were born to the registered domestic partnership and the Defendant consented, in writing, to both children’s conception.
Second, the SJC upheld the custody arrangement because the Plaintiff would support the involvement of both parents, whereas the Defendant demonstrated her refusal to do the same. Additionally, the Plaintiff had moved fewer times than the Defendant, and had more stability.
Third, the SJC upheld the attorney’s fees. The Plaintiff’s attorney was highly competent with reasonable fees, and a bulk of the trial was the result of the Defendant’s refusal to recognize the Plaintiff’s legal parentage of the first child, a point that a single justice of the Appeals Court affirmed prior to trial.