We Are Family: Partanen v. Gallagher Applies Chapter 209C to Protect Children of Never-Married LGBTQ Families

by Patience Crozier

Case Focus

Nothing is more important in the life of a child than the security of their parental relationship.  The parent-child relationship is foundational and the source of love, emotional and material support.  The recent Supreme Judicial Court (SJC) case Partanen v. Gallagher­, 475 Mass. 632 (2016), addressed the security of a previously vulnerable class of children – the children of never-married non-biological parents – and clarified that the Massachusetts parentage statutes ensure their equal access to legal parentage.

The facts of the case were representative of those many families in the Commonwealth and beyond.  Two women, Karen Partanen and Julie Gallagher, were in a committed relationship.  They planned together to have children and, with mutual involvement and consent, Ms. Gallagher conceived via assisted reproduction using donor sperm and gave birth to two children.  Ms. Partanen was present at both births, and together the couple cared for the children, made mutual decisions to further their well-being, and held themselves out to family, friends and institutions such as schools and health care providers as a family.  The couple did not marry or complete co-parent adoptions.  Shortly after they moved back to the Commonwealth from Florida, the couple’s relationship ended. Ms. Partanen filed two actions to secure the children’s rights to continue their relationships with her, one to establish de facto parentage, and later, another to establish full legal parentage under G. L. c. 209C, arguing that Ms. Partanen is a presumed parent under the statute.  The trial court dismissed the legal parentage action, holding that Ms. Partanen could not seek parentage under Chapter 209C because of her lack of biological connection to the children. Ms. Partenen appealed and the SJC took the case on direct appellate review.

Section 6(a)(4) of Chapter 209C provides that “a man is presumed to be the father of a child” if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”  To establish herself as a presumed parent under that provision, Ms.  Partanen first had to allege that the children were born to parents who are not married to each other and, second, that she satisfied the “holding out” provision of the statute, which requires proof that she, jointly with the birth mother, received the children into their home and openly held them out as their own.  Ms. Gallagher maintained that Ms. Partanen could not be a presumed parent because she had no biological connection to the children.  Ms. Partanen disagreed, arguing that her complaint sufficiently alleged that she was a presumed parent under the statute.

The SJC closely examined the plain language of G.L. c. 209C, § 6(a)(4).    The main question was whether Ms. Partanen could establish herself as a presumed parent without any biological relationship to the children.  In analyzing § 6(a)(4), the SJC reiterated the familiar rule that statutes must be read in gender-neutral terms. The Court concluded that the statute’s plain language applies to children born to same-sex couples who lack biological ties with their children.  Because no statutory language required a biological connection between parent and child, the Court declined to read into the statute such a requirement, particularly when doing so would undermine the statute’s purpose by making this class of children more vulnerable.  The SJC further noted that insofar as a father may validly execute a voluntary acknowledgment of parentage absent a biological relationship, same-sex parents must be able to do the same. The Court reasoned that lack of a genetic tie cannot rebut the presumption of parentage when the parentage claim is not based on a genetic tie.  Numerous other state courts have interpreted similar statutory provisions to allow the establishment of parentage in similar circumstances, including California, Colorado, New Hampshire and New Mexico.

Turning to the facts of this case, the Court concluded that Ms. Partanen adequately alleged parentage under the statute.  The SJC held that she met the two-step test articulated in § 6(a)(4) because she and Ms. Gallagher created a family together with shared involvement, consent and intention, satisfying the requirement that the children were “born to” them.  Ms. Partanen also adequately alleged that she “received the child into their home and openly held out the child as their child” in her assertions that they lived as a family, actively cared and made decisions together for the children, and represented themselves to others as their parents.

The implications of Partanen are far-ranging. It is now clear that non-marital same-sex couples can execute voluntary acknowledgments of parentage in the hospital at birth, the key administrative route for establishing a non-marital parent-child relationship and one that saves families the expense and delay of establishing parentage through the court system.  Further, these parents can also seek an adjudication of parentage in the courts under G. L. c. 209C, § 6(a)(4), a clear and established means of asserting parentage that is more affordable, accessible and reflective of the family’s reality than de facto parent litigation. Finally, never-married, non-biological parents may now be able to receive counsel and participate in child welfare and juvenile court proceedings regarding their children.  A class of parents previously cut out of involvement and decision-making in their children’s lives can now access the full range of protections of legal parentage.  Partanen also further highlights the great diversity of families in the Commonwealth, where legal parentage can arise from marriage, adoption, genetic ties and through conduct.  Partanen represents a major step forward in ensuring security and equality for all children.

Patience Crozier served on the team of appellate attorneys for Karen Partanen along with co-counsel Mary L. Bonauto, Elizabeth Roberts and Teresa Harkins La Vita.  Amici in support of Ms. Partanen’s legal arguments indicate the depth and breadth of support for her position.  Amici included the Attorney General of Massachusetts, Greater Boston Legal Services, Children’s Law Center, Massachusetts LGBTQ Bar Association, Women’s Bar Association of Massachusetts, Community Legal Aid, Carolyn Famiglietti, Maureen McBrien, Massachusetts Bar Association, American Academy of Assisted Reproductive Technology Attorneys, Boston IVF, Fenway Health, IVF New England, New England Fertility Society, Path2Parenthood, Resolve: The National Infertility Association, Resolve New England, and Forty-two Law Professors.