Bethany v. Jones

DONALD L. CORBIN, Justice. hThe instant matter involves a dispute over child visitation. Appellant Alicia Bethany, biological mother of minor child, E.B., argues on appeal that Appellee Emily Jones, Bethany’s former same-sex partner, has no recognizable right entitling her to visitation with E.B. In support of her contention, she argues on appeal that the circuit court erred (1) in denying her motion to dismiss where Jones could not maintain any cause of action; (2) in denying her motion for directed verdict because there is no law in Arkansas that allows Jones to have visitation with the minor child; (3) in granting visitation under a theory of in loco parentis or equitable es-toppel; and (4) in failing to transfer this case from Perry County to Garland County, where venue was proper. We granted Appellant’s motion to transfer this case from the Arkansas Court of Appeals as it involves an issue of first impression; hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(b)(1) (2010). We affirm the order of the circuit court. The facts are largely undisputed. Bethany and Jones were same-sex partners from 2000 until 2008. In 2003, the parties purchased a home together, with both of their names listed | ¡.on the mortgage. Then, in 2004, the parties began to take steps toward having a family. A male friend of Jones’s agreed to donate sperm. Bethany agreed to carry the child because Jones was experiencing some health issues, including reproductive problems. Through the process of artificial insemination, Bethany became pregnant, and the minor child was born in 2005. The couple chose to give the child Jones’s last name and Jones’s grandmother’s name as the child’s middle name. The testimony at trial revealed that Bethany and Jones intended to co-parent the child. In fact, Bethany testified that at the time of conception, she considered Jones to be E.B.’s parent. After E.B.’s birth, the parties agreed that Jones would remain at home as the child’s primary caregiver with Bethany returning to work on a full-time basis. E.B. referred to Bethany as “mama” and to Jones as “mommy.” It was undisputed that E.B. formed close relationships with members of Jones’s family, calling Jones’s parents “Grammy” and “Poppy.” Bethany was not close to either of her parents, and E.B. had little or no relationship with either of them. In 2008, the parties ended their romantic relationship, but at that time agreed to continue co-parenting E.B. However, the situation between Bethany and Jones began to deteriorate. They had a disagreement over Jones keeping E.B. for a twenty-four-hour period, against Bethany’s wishes. Bethany, who had entered into a relationship with another woman, decided that it was no longer in E.B.’s best interest to have contact with Jones because she |squestioned Jones’s ability to parent, citing such factors as instability, depression, safety of the child, and truthfulness of Jones. After Bethany denied Jones visitation with E.B., Jones filed the instant action for custody alleging breach of contract based upon equitable estoppel.1 Bethany sought to have the complaint dismissed, arguing that Jones lacked standing to bring the suit, as there was nothing in Arkansas law that allowed her to seek visitation with E.B. Alternatively, she sought to have the case transferred to Garland County, claiming that the child resided in Hot Springs, Arkansas. A hearing on the motion was held on February 11, 2009. Counsel for Bethany argued that there was no basis in the law for the petition, as Jones was not a biological parent, nor was there any support for a finding that Jones stood in loco parentis to the child. On the contrary, Jones argued that she did stand in loco parentis and that there was ample statutory authority for awarding her custody of the child on that basis. Jones also argued that she and Bethany formed an agreement that they would have' a child, that Jones would stay at home and take care of the child while Bethany worked, and that they would raise the child together. Jones asserted that Bethany breached that agreement and, thus, the court could fashion an equitable remedy for breach of an implied contract. |4A second hearing was held on June 9, 2009, on a motion for summary judgment filed by Jones and a second motion to dismiss filed by Bethany. Jones argued that there was substantial evidence that she stood in loco parentis to E.B. She further argued that even though there was no statutory authority allowing a same-sex partner to seek custody or visitation with a minor child, the concept of in loco parentis was well recognized in Arkansas and allowed the circuit court to grant visitation from an equitable standpoint — as it was in E.B.’s best interest that her relationship with Jones continue. Bethany countered that there was no legal basis for visitation, as this situation was “no different than if a nanny decided they had become really close to a child and they wanted to file a case for custody.” Bethany further argued that the fashioning of any remedy was a matter for the legislature. A bench trial was held on October 30, 2009. Bethany testified that she met and began a relationship with Jones in 2000 and that the couple bought a home together in 2003. She stated that they lived together until November 2008. According to Bethany, she and Jones began discussing having a child together and met with a prospective sperm donor in 2004. They informed the potential donor, who was a friend of Jones’s, that they did not expect him to have any kind of legal or emotional relationship with the child. At some point, the parties agreed that Bethany would carry the child because she was in better health physically. Jones was the one who actually inseminated Bethany. Bethany admitted that Jones went to every doctor’s appointment with her and was present during E.B.’s birth. Bethany further stated that originally she gave the child the middle name Lillian, which was Jones’s paternal | ^grandmother’s name, and Jones’s last name but has since removed the name Lillian and changed her last name, via court order. Bethany denied being estranged from her family. She did admit, however, that prior to and after E.B.’s birth, she considered Jones to be a co-parent and that E.B. referred to Jones as “mommy.” She also admitted that after the pair split, she intended to continue parenting with Jones. Bethany also testified about the incident that led her to stop Jones’s visitation with E.B., claiming that Jones kept E.B. past the agreed-upon time for returning her. According to Bethany, Jones kept the child for over twenty-four hours after her visitation ended. Bethany stated that she thought this episode demonstrated that Jones was irrational and emotionally unstable and that visitation should no longer occur. Bethany admitted that E.B. thought of Jones’s parents as her grandparents and spent all holidays with Jones’s family. She also admitted that Jones stayed at home for over three years to take care of the child but denied that the child was traumatized by Jones no longer being in her life. On cross-examination, Bethany testified that she worried about Jones’s long-standing battle with depression. She opined that Jones lacked the ability to parent. She also stated that after E.B. was born, Jones was diagnosed with Chiari syndrome, a condition that causes migraine-like headaches, and that some days she was not able to take care of E.B. She also stated that in her opinion it was not in E.B.’s best interest to resume visitation because Jones had done nothing to rebuild her trust after the prior incident when she kept E.B. past the visitation deadline. Bethany opined that she did not think that Jones was fit and capable of | staking care of E.B. Finally, Bethany testified that she has been a resident of Garland County since the time that the instant action was filed and that she lives there with her partner, her partner’s daughter, and E.B. Bethany stated that she considered her partner to be a stepparent to E.B. Jones testified that she was E.B.’s caretaker for the first years of her life. She denied that she was unable to take care of the child because of her health. She stated that Bethany was always close to Jones’s family. She stated that Bethany had issues with depression that worsened after E.B.’s birth. Jones stated that her mom would sometimes watch E.B. so that she could occasionally work outside the home. Jones explained that when she kept E.B. past the twenty-four-hour period she did so because she was concerned about Bethany’s plan to put E.B. in a car for an extended amount of time to go to Dallas to see people E.B. did not know. Jones stated that she and Bethany had an oral agreement that they would raise the child together, and they never had any discussions about what would happen if they split up. Jones admitted that neither she nor Bethany ever took any steps to legalize their relationship. At the conclusion of the trial, the circuit court ruled from the bench that Jones had sustained her burden of proof to establish a relationship with E.B. based on the doctrine of in loco parentis. Thus, the court announced that it was going to allow Jones to have visitation. The circuit court further stated that it was in E.B.’s best interests to have a relationship with both women and their families. |7In a written order entered on November 24, 2010, the circuit court awarded Jones visitation rights. He relied, in part, on the case of Robinson v. Ford-Robinson, 88 Ark. App. 151, 196 S.W.3d 503 (2004), where the court of appeals affirmed a lower court’s grant of visitation rights to a stepparent who stood in loco parentis.2 The circuit court noted that the main difference between the instant case and Robinson was that in the latter, the parties were married but Arkansas law does not allow for same-sex marriage. In so ruling, the circuit court made the following relevant findings: 22. The Plaintiff cared for the child’s every need every day for three and one-half years. The Plaintiff fed, bathed, clothed, nurtured, supervised, and supported E.B., and performed every other act a parent would do for their child. The Plaintiff and Defendant agreed to co-parent the child, and the Plaintiff stood in loco parentis to the minor child to the exclusion of all others besides the Defendant. 28. The Court finds that the Plaintiff established that she stood in loco paren-tis to the minor child, as she stood not only in the position of a parent to the child for three and one-half years, but the child saw the Plaintiff as her parent for those years. This relationship continued until the Defendant abruptly terminated the relationship and later eliminated any contact between the child and the Plaintiff. Furthermore, the court agreed with Jones that Bethany should be estopped from denying Jones’s in loco parentis status. The court also considered the best interests of the child, finding that it was in E.B.’s best interests to have visitation with Jones, as a parent-child relationship between E.B. and Jones had been created. The court also noted E.B.’s ^relationship with Jones’s family as support for the conclusion that it was in the child’s best interest to grant visitation. From that order comes the instant appeal. I. Visitation Bethany’s first three arguments on appeal, that Jones failed to state a cause of action, that there is no law in Arkansas that allows Jones to seek visitation, and that the doctrine of in loco parentis is inapplicable, are so intertwined that we will address them together. Essentially, Bethany argues for reversal on the sole basis that nothing in Arkansas law allows her former same-sex partner to seek visitation with the child born to Bethany during their relationship. Jones counters that the circuit court correctly determined that she stood in loco parentis to E.B. and properly awarded her visitation. Our analysis must begin with the fundamental notion that the Due Process Clause of the Fourteenth Amendment protects the rights of parents to direct and govern the care, custody, and control of their children. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion) (declaring Washington State’s grandparent-visitation act unconstitutional as applied); see also Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002) (holding that Arkansas’s grandparent-visitation statute was unconstitutional as applied where it violated a mother’s fundamental liberty interest under the due-process clause to parent her child). However, this court has distinguished the situation where a grandparent seeks visitation against a parent’s wishes, explaining that in a case where a stepparent seeks visitation it is under the theory that he or she stood in loco parentis to the child rather than just having some type of relationship. | Robinson, 362 Ark. 232, 208 S.W.3d 140. We held that the finding of an in loco parentis relationship is different from the grandparent relationships found in Troxel and Linder because it concerns a person who, in all practical respects, was a parent. Id. Thus, any argument that Jones cannot seek visitation because to do so would interfere with Bethany’s right to parent is unavailing. Moreover, our law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). While the exact facts of this case are unique, we have cases discussing the doctrine of in loco parentis. Specifically, our decision in Robinson, 362 Ark. 232, 208 S.W.3d 140, offers some guidance. In Robinson, a stepmother petitioned for visitation with her stepson following a divorce from the child’s father. The father objected to visitation. The child was two when the couple were married, and his father had sole legal custody after his mother relinquished her parental rights. In the divorce action, the wife initially sought custody of the child but subsequently amended her complaint to request visitation. The circuit court granted visitation finding that the wife had stood in loco parentis to the child since he was eighteen months old, that he recognized her as his mother, and that it would be in his best interest to have visitation with his stepmom. We held that a circuit court may award visitation to a stepparent standing in loco parentis over the natural parent’s objection. Id3 | mThis court discussed the concept of in loco parentis in Robinson, explaining as follows: In Standridge v. Stand-ridge, 304 Ark. 364, 803 S.W.2d 496 (1991), we cited Black’s Law Dictionary (5th ed.1979) defining “in loco parentis ” as “in place of a parent; instead of a parent; charged factitiously with a parent’s rights, duties, and responsibilities.” In Moon Distributors v. White, 245 Ark. 627, 434 S.W.2d 56 (1968), we permitted a wrongful-death award to a decedent’s stepdaughter to whom the decedent stood in loco parentis, noting that the stepdaughter lived in the home with her stepmother “as mother and daughter.” Finally, this court has treated grandparents who stood in loco parentis differently from grandparents who did not. See Johnson v. Tompkins, 841 Ark. 949, 20 S.W.3d 385 (2000). In Johnson; we held that the grandparents had no right to present evidence on whether adoption would be in their grandchild’s best interest. Id. We distinguished our decisions in Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981), and Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981), in which we held that grandparents had standing to intervene in adoption proceedings involving their grandchildren, because the grandparents in those cases stood in loco parentis to their grandchildren. We hold that a court may award visitation to a stepparent who stands in loco parentis to a minor child when it determines that it is in the best interest of the child. Id. at 239-40, 208 S.W.3d at 144. Thus, the doctrine of in loco parentis focuses on the relationship between the child and the person asserting that they stood in loco parentis. Bethany on the other hand seems to argue that because Arkansas does not recognize same-sex marriage or grant domestic-partnership rights, Jones has no legal standing to assert that she stood in loco parentis. In other words, Bethany focuses on her relationship with Jones instead of looking at the relationship between Jones and E.B. There is nothing in our decision in Robinson to support Bethany’s assertion in this regard. Although this court in Robinson noted the fact that the visitation issue arose in the context of a divorce proceeding, this court stated |nthat “critical” to its review was the fact that the circuit court found that the stepmother stood in loco parentis to the minor child. Id. at 239, 208 S.W.3d at 143. We reiterate that the focus should be on what, if any, bond has formed between the child and the nonparent. Thus, we must now determine whether the circuit court’s finding that Jones stood in loco parentis was clearly erroneous, as we review domestic-relations cases de novo on the record. Robinson, 362 Ark. 232, 208 S.W.3d 140. We will not reverse a finding by the circuit court unless it was clearly erroneous. Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823. We have further stated that a finding of fact by a circuit court is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been committed. Id. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891 (2004). This deference to the circuit court is even greater in cases involving child custody or visitation, as a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). Considering the ample evidence about the relationship between Jones and E.B., we cannot say that the circuit court clearly erred in finding that she stood in loco parentis to the child. It was undisputed that she was the stay-at-home mom for over three years who took care of E.B. E.B. called her mommy. She thought of Jones’s parents as her grandparents and 112spent holidays with Jones’s family. The parties’ intentions were always to co-parent, until Bethany unilaterally determined she no longer wanted to allow Jones to have visitation. Taking this all into consideration, we hold that the circuit court correctly determined that Jones was a parent figure to E.B. Having determined that Jones stood in loco parentis, the question then becomes whether it is in E.B.’s best interest for Jones to have visitation rights, as that is the polestar consideration. See, e.g., Hudson v. Kyle, 365 Ark. 341, 229 S.W.3d 890 (2006); Alphin, 364 Ark. 332, 219 S.W.3d 160. Here, the circuit court found that it was in E.B.’s best interest to have visitation with Jones. Specifically, the circuit court found that it is in [E.B.j’s best interest for the Plaintiff to have visitation with her. For all of the reasons stated above, it is clear that the Plaintiff was [E.B.j’s primary caregiver. A parent-child relationship between [E.B.] and the Plaintiff was deeply established, as were relationships between the child and the Plaintiffs extended family, involving the Plaintiffs mother and father and step-mother and other family members. The Defendant was estranged from her family during most of this time, so the only support provided to the child came from the Plaintiff, the Defendant and the Plaintiffs extended family. 42. Finally, the Court questions the Defendant’s veracity as to her assertion that [E.B.] has not exhibited any kind of behavior or emotion which would indicate she has been negatively affected by [E.B.]’s abrupt separation from the Plaintiff. Up to this point, [E.B.] has spent most of her life in the Plaintiff’s care, and based upon the loving relationship that they formed, shared and enjoyed, it would be in [E.B.j’s best interest to continue to have contact with the Plaintiff. Clearly, the circuit court weighed the testimony presented and considered the great weight of evidence regarding Jones’s care for E.B., the parent-child relationship formed between Jones and the child, and the child’s relationships with Jones’s family, to determine that it was 11sin E.B.’s best interest to allow Jones’s visitation. As we previously stated, we give due deference to the circuit court’s ability to view and judge the credibility of the witnesses. Hunt, 357 Ark. 224, 162 S.W.3d 891. Accordingly, we cannot say that the circuit court erred in ruling that it was in E.B.’s best interest to have visitation with Jones. Before leaving this point, we note that Bethany makes several arguments that if we allow the nonbiological parent in this case to stand in loco parentis or to seek any visitation or custody rights to this child, it will open a floodgate that allows any person, i.e., a nanny, a babysitter, a girlfriend or boyfriend to go into court and seek custody of a child. We find this argument unavailing. In fact, the Kentucky Supreme Court in Mullins v. Picklesimer, 317 S.W.3d 569 (Ky.2010), in a case factually similar to the instant one, rejected any such open-floodgate argument by noting the specific facts of the case as follows: In the present case, the child was conceived through artificial insemination and brought into the world upon agreement of the parties to parent the child together. It was undisputed that Mullins physically cared for and supervised Zachary from birth throughout the period the parties were together and for the five months thereafter when they shared custody. And she did so in the capacity of a parent, which is evidenced by her living as a family with the child and Picklesimer, the child calling her “momma,” the child’s hyphenated surname (Picklesimer-Mullins), the parties’ attempt to confer parental rights on Mullins with the agreed judgment of custody, and Picklesimer continuing to allow Mullins to co-parent to the child for some five months after the parties’ relationship dissolved. Id. at 576-77. After reciting these pertinent facts, the Kentucky court concluded that the case was distinguishable from the situation where there is a grandparent, a babysitter, or a boyfriend or girlfriend of the parent, who watched the child for the parent, but who was never intended by the parent to be doing so in the capacity of another parent. Id. | MThe only significant factual difference between this case and Mullins is that in the latter, the parties, while still together, attempted to obtain a legal agreement regarding custody and legal rights between the partner and the minor child. No written agreement was ever entered into between the parties in this case, although the evidence is undisputed that it was the intent of both Bethany and Jones to co-parent E.B. Our holding in the instant case that the circuit court did not clearly err in finding that Jones stood in loco parentis to E.B. and that it was in E.B.’s best interest to allow visitation with Jones is grounded in the specific facts of this case. Thus, there is no merit to Bethany’s contention that this case will open the floodgates to allow anyone to seek visitation with a minor child.4 II. Motion to Transfer Finally, Bethany argues that the circuit court erred in denying her motion to transfer the case to Garland County, as she and E.B. resided in Hot Springs at the time the action was 11fifíled and, thus, venue did not lie in Perry County. In support of her contention, she argues that, prior to filing the instant action, Jones filed a guardianship action in Garland County. Further, she points out that the circuit court in its order stated that after terminating her relationship with Jones, Bethany moved in with another partner in Hot Springs. Bethany then concludes, without any citation to authority, that the circuit court clearly erred in denying the motion to transfer for proper venue. It is well settled where a party fails to cite to authority, this court will not consider the argument on appeal. See Matsukis v. Joy, 2010 Ark. 403, 377 S.W.3d 245. Nevertheless, Bethany’s argument on this point is without merit. The standard of review on appeal of a denial of a motion to transfer is whether the circuit court abused its discretion. Jones v. Billingsley, 363 Ark. 96, 211 S.W.3d 508 (2005). Here, the court denied the motion to transfer by order entered of record on July 27, 2010, finding that Bethany was a resident of Perry County at the time the original cause of action was filed on December 9, 2008. Bethany presented no proof, other than her bare assertion, that she had moved her legal residence to Garland County prior to the filing of this action. Absent such proof, we cannot say that the circuit court abused its discretion in denying the motion to transfer the case to Garland County. Affirmed. BAKER and HENRY, JJ., dissent. Footnotes [1] Originally, Jones filed an action for guardianship that was subsequently voluntarily dismissed. [2] This court granted a petition for review in Robinson, and affirmed the circuit court’s order finding that the stepmother stood in loco parentis and was thus entitled to visitation with her stepson. Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005). [3] In Robinson, we also rejected the appellant’s argument that the holding in Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988) — that a stepparent could be awarded custody of a minor child, although the preference for a natural parent must prevail unless it is established that the natural parent is unfit — had been overruled. That case remains good law today. [4] Justice Baker, like Appellant, is trying to make this case into something it is not. Her dissent operates under the false premise that this is a statutory-interpretation case. This is quite simply a visitation issue wherein the circuit court granted visitation based on findings that Jones stood in loco parentis to E.B. and that it was in E.B.'s best interests to have visitation with the woman who had helped raise her for the first three years of her life. Justice Baker’s dissent attempts to circumvent stare decisis by referring to the common-law doctrine of in loco parentis as "an interpretive tool.” We will not place such an artificial restriction on the doctrine in order to achieve a certain result. Notably, Justice Baker never once discusses the best interests of the child, which is the polestar consideration in a case such as this one. Moreover, in the absence of any compelling reason to do so, we will not retreat from our decision in Robinson, 362 Ark. 232, 208 S.W.3d 140. Guided by our decision in that case, we reviewed the sole question of whether the circuit court correctly granted visitation in the instant case. We are not creating new law; rather, we are adhering to the doctrine of stare decisis.