IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 44419
JANE DOE (2016-34), )
)
Petitioner-Respondent- ) Boise, January 2017 Term
Cross Appellant, )
v. ) 2017 Opinion No. 60
)
JANE DOE I, ) Filed: June 7, 2017
)
Respondent-Appellant- ) Stephen W. Kenyon, Clerk
Cross Respondent. )
_______________________________________ )
Appeal from the Magistrate Court of the Fourth Judicial District of the State of
Idaho, Ada County. Hon. Diane Walker, Magistrate Judge.
The judgment of the magistrate court is affirmed in part and reversed in part.
Cosho Humphrey LLP, Boise, for appellant. Stanley Welsh argued.
The Law Offices of J. Scott Escujuri, PLLC, Boise; Emily Haan, San Francisco,
CA; Ferguson Durham, PLLC, Boise, for respondent. Emily Haan argued.
_____________________
BRODY, Justice.
This case requires us to resolve a custody dispute between Jane Doe I, Child’s natural
mother, and Jane Doe, the natural mother’s former partner. During the course of Mother and
Partner’s relationship, Mother conceived a child via artificial insemination. After the parties
separated, Partner filed a petition to establish parentage, custody and visitation with Child.
Partner advanced two legal arguments to support her petition. First, she argued this Court’s
decision in Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989), provides an independent
cause of action by which the court may grant custody to Partner. Second, she argues that she
should be deemed a parent under Idaho Code section 39-5405, Idaho’s artificial insemination
statute, because she consented to the artificial insemination. As part of this argument, Partner
contends that Idaho’s artificial insemination statute violates Child’s rights and her rights under
the Equal Protection Clause of the United States Constitution by discriminating against children
born outside of marriage. The magistrate court denied Partner’s claim for parentage, but granted
her visitation rights under Stockwell. Mother and Partner cross-appealed the magistrate court’s
decision.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Partner were involved in a committed relationship from 2006 until 2012. The
two did not marry because Mother did not want the legal commitment to Partner. Although not
married, Mother and Partner jointly agreed to start a family using an anonymous sperm donor.
Mother planned to have a child regardless of whether Partner participated, and Mother wanted
Child to be biologically related to her.
Partner was involved with the artificial insemination process. Before Child’s birth,
Mother and Partner consulted with an attorney regarding Partner adopting Child, but they were
discouraged from adoption proceedings because the attorney believed that same-sex couples
were prohibited from pursuing adoptions, although they were instructed that no law exists
prohibiting same-sex adoptions. This consultation took place before this Court’s decision in In
Re Adoption of Doe, 156 Idaho 345, 326 P.3d 347 (2014), wherein we ruled that Idaho’s
adoption statute does not prohibit an unmarried woman from adopting her domestic partner’s
children. Mother and Partner did not pursue adoption.
Throughout the pregnancy Partner attended prenatal appointments and was present during
the birth. From February 2010 until June 2012, Mother and Partner coordinated their work
schedules to care for Child and lived as a family. Mother and Partner’s relationship deteriorated
in 2012, and Partner moved out of the home. Partner did not attempt to have custody of Child, or
take her with her when she moved out. Throughout the summer of 2012, Partner cared for Child
when Mother was at work. Gradually, the time Partner spent caring for Child decreased. In
January 2015, Mother prohibited Partner from contacting Child and rejected Partner’s financial
support. Mother told Partner that Mother was the biological parent, and that Partner had no legal
rights to Child.
Partner filed a Petition for Adoption, Guardianship, and Visitation in the magistrate court.
Partner dismissed her adoption claim because Mother would not consent to it. Partner filed an
Amended Petition to Establish Parentage, De Facto Parentage, and Custody and Visitation.
Mother filed a motion to dismiss. The magistrate court dismissed the claim involving the
parentage claim under Idaho’s artificial insemination statute, but allowed the independent
Stockwell claim for custody to proceed to trial. After the trial, the magistrate court granted
Mother sole legal custody and primary physical custody of Child. It also granted Partner
visitation rights. The magistrate court stayed the judgment, kept a temporary visitation order in
place, and granted permission to seek an expedited appeal of the judgment to this Court. This
Court granted the parties’ expedited cross-appeals.
II.
ISSUES PRESENTED ON APPEAL
1. Whether the magistrate court erred in construing Stockwell to create a cause of
action for a non-parent seeking custodial rights to a minor child.
2. Whether the magistrate court erred in dismissing Jane Doe’s claim that she is a
legal parent pursuant to Idaho’s artificial insemination statute.
III.
STANDARD OF REVIEW
“This [C]ourt exercises free review over the lower court’s conclusions of law.” Barry v.
Pac. W. Constr., Inc., 140 Idaho 827, 831, 103 P.3d 440, 444 (2004). “‘Jurisdictional issues,
such as standing, are questions of law,’ over which this Court exercises free review.” In re
Adoption of Doe, 156 Idaho 345, 348, 326 P.3d 347, 350 (2014) (quoting Martin v. Camas Cty.
ex rel. Bd. Comm’rs, 150 Idaho 508, 512, 248 P.3d 1243, 1247 (2011)). This Court also
“exercises free review when interpreting the meaning of a statute.” Id.
IV.
ANALYSIS
A. The Stockwell decision does not create an independent cause of action for a non-
parent seeking custodial rights to a minor child.
Partner filed what has been dubbed as a “Stockwell petition” based on this Court’s
decision in Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989). Partner argues that
Stockwell created a common law cause of action enabling non-parents (Partner uses the term “de
facto parent”) to seek custody of children. Mother contends that Partner’s Stockwell petition is
unprecedented, and, if granted, will open the door to third party custody claims outside the
statutory frameworks passed by the Idaho legislature. We agree with Mother, and find that the
magistrate court erred when it granted Partner visitation rights.
Stockwell involved a complicated custody dispute that arose after a divorce. Prior to the
Stockwell’s wedding, Patricia Stockwell gave birth to a child named Amber. 116 Idaho at 298,
775 P.2d at 612. Dan Stockwell was not the biological father of the child, even though his name
was placed on her birth certificate. Id. During the course of the marriage, Dan established a
parental relationship with Amber. Id. He was the only father she ever knew. Id. at 300, 775 P.2d
at 614. The Stockwells divorced when Amber was about nine years old. By that time, the
Stockwells also had another child. During the divorce, the Stockwells agreed to place both girls
under the guardianship of Dan’s parents. Id. at 298, 775 P.2d at 612. The divorce decree did not
otherwise address the care, custody, or support of the children. Id. About a year later, Patricia
moved to terminate the grandparents’ guardianship. Id. The magistrate court granted the motion
to terminate and awarded Patricia custody of both children. Id. Dan was granted visitation rights,
but when he pressed for those rights, Patricia fled Idaho with the girls and her new husband. Id.
at 298–99, 775 P.2d at 612–13. After Patricia fled the state, the magistrate court entered another
order finding that Patricia’s conduct warranted a change of custody. Id. at 299, 775 P.2d at 613.
The magistrate court awarded custody of the biological child to Dan, but declined to award him
custody of Amber. Id. The magistrate court did, however, award Dan visitation rights. Amber
stayed in Dan’s custody while he appealed the decision. Id.
The Stockwell case made its way to this Court. This Court held: “[i]n custody disputes
between a ‘non-parent’ (i.e., an individual who is neither legal nor natural parent) and a natural
parent, Idaho courts apply a presumption that a natural parent should have custody as opposed to
other lineal or collateral relatives or interested parties.” Id. The Court held further:
This presumption operates to preclude consideration of the best interests
of the child unless the nonparent demonstrates either that the natural parent has
abandoned the child, that the natural parent is unfit or that the child has been in
the nonparent’s custody for an appreciable period of time.
Id. If the child has been in the non-parent’s custody for an “appreciable period of time,” then the
court must decide what placement is in the best interests of the child. For Amber Stockwell, it
meant being placed with her step-father.
This Court’s decision in Stockwell is not a key to the courthouse for non-parents seeking
custody of minor children. The Stockwell decision was made in the context of divorce and
guardianship proceedings and cannot be used as a toe-hold for an independent custody action
brought by a non-parent. This Court understands that family structures are changing, but it is not
the role of this Court to create new legal relations. That is the business of the Idaho legislature.
This Court recently explained this point in a case involving a surrogate mother and
“intended parents.” In the Matter of Doe, 160 Idaho 360, 372 P.3d 1106 (2016). In Doe, a
surrogate mother and her husband filed a declaratory judgment action to have the “intended
parents” with whom she contracted declared as the legal parents of the child she carried. They
brought the action so that the intended parents’ names could be placed on the birth certificate and
no adoption proceeding would be required. This Court declined to grant the declaration, holding
that Idaho’s declaratory judgment action statute does not give the Court the power to create new
legal relationships. This Court explained:
Although the parties are correct that as a procedural matter Idaho Code
section 10-1201, et. seq. does allow courts to declare legal relations, that power is
inherently limited to the interpretation of previously established substantive law.
Idaho Code section 10-1201, et. seq. does not give this Court, or any other Idaho
court, the power to create law. “The legislature and the legislature only, under our
constitution, has power to legislate.” Thomas v. Riggs, 67 Idaho, 223, 228, 175
P.2d 404, 407 (1946). Where the legislature has not seen fit to provide substantive
legal grounds on which a court can base a requested declaration, then it is outside
of the authority of that court to make said declaration, even when it would further
the interests of all parties involved (as here).
160 Idaho at 362, 372 P.3d at 1109.
The Idaho legislature has adopted legislation enabling non-parents to seek custody of
children. The keys to the courthouse are varied: Idaho Code section 32-1701 et. seq. (De Facto
Custodian Act enabling relatives related to a child within the third degree of consanguinity to
seek custody); Idaho Code section 32-717(3) (enabling grandparents to intervene in divorce case
where the child actually resides with grandparent); Idaho Code section 32-719 (enabling
grandparents and great-grandparents to seek visitation); Idaho Code section 15-5-204
(guardianship proceeding authorized where child has been neglected, abused, abandoned, or
whose parents are unable to provide a stable home environment). At this point in time, the
legislature has not adopted a statutory framework that would enable Partner to seek custody or
visitation under the circumstances of this case.
Mother made the decision to terminate the relationship between Child and Partner. She
had that right, and while there may be a temptation to second-guess that decision, courts cannot
do so. Parents have a constitutional right to care, custody, and control of their children. Troxel v.
Granville, 530 U.S. 57, 66, 120 S.Ct. 2054 (2000); Leavitt v. Leavitt, 142 Idaho 664, 670, 132
P.3d 421, 427 (2006). The Supreme Court of the United States has observed, “The liberty
interest at issue in this case—the interest of parents in the care, custody, and control of their
children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
Troxel, 530 U.S. at 66.The magistrate court erred when it extended Stockwell to award visitation
to Partner. We reverse the magistrate court’s judgment.
B. The magistrate court properly dismissed the parentage claims based on Idaho’s
Artificial Insemination Act.
Partner contends that she is Child’s parent pursuant to Idaho Code section 39-5405
because she consented to Mother’s artificial insemination. Section 39-5405 establishes the
respective rights of a semen donor, resulting child, and the mother’s husband. Under this
provision, the semen donor has no rights or obligations with respect to a child who is conceived
through artificial insemination. Likewise, the child has no rights or obligations with respect to
the semen donor. If the mother is married, and the husband has consented to artificial
insemination, then the husband and resulting child have the same rights and obligations with
respect to each other as if the child had been conceived naturally by the mother and husband. The
statute states:
(1) The donor shall have no right, obligation or interest with respect to a child
born as a result of the artificial insemination.
(2) A child born as a result of artificial insemination shall have no right,
obligation or interest with respect to such donor.
(3) The relationship, rights and obligation between a child born as a result of
artificial insemination and the mother’s husband shall be the same for all
legal intents and purposes as if the child had been naturally and legitimately
conceived by the mother and the mother’s husband, if the husband
consented to the performance of artificial insemination.
I.C. § 39-5405 (emphasis added). The plain language of the statute simply does not address a
situation like at issue here where a child is conceived through artificial insemination by an
unmarried couple.
The magistrate court dismissed Partner’s claim of parentage based on this statute because
Mother and Partner were not married. Partner contends that section 39-5405(3) as applied to her
and Child violates the Equal Protection Clause of the United States Constitution by
discriminating against non-marital children. We find Partner does not have standing to raise
Child’s claim.
It is well understood that a person wishing to invoke a court’s jurisdiction must have
standing. Van Valkenburgh v. Citizens for Term Limits, 135 Idaho 121, 124, 15 P.3d 1129, 1132
(2000). Standing is a threshold issue that must be decided before reaching the merits of the
case. Miles v. Idaho Power Co., 116 Idaho 635, 637, 778 P.2d 757, 759 (1989). The doctrine of
standing is a subcategory of justiciability. Id. at 639, 778 P.2d at 761. To be sure, the doctrine is
imprecise and difficult to apply. Id. at 641, 778 P.2d at 763 (citing Valley Forge College v.
Americans United, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)). It is even more difficult
in a case such as this where the party bringing the claim seeks to assert the rights of another
person.
This Court has explained that there are three interrelated criteria for a party to assert the
constitutional rights of another person:
(1) [s]he must have suffered injury in fact, providing a significantly concrete
interest in the outcome of the matter in dispute; (2) [s]he must have a sufficiently
close relationship to the party whose rights [s]he is asserting; and (3) there must
be a demonstrated bar to the third parties’ ability to protect their interests.
Shepherd v. Shepherd, 161 Idaho 14, 19, 383 P.3d 693, 699 (2016). “Courts hesitate before
resolving the rights of those not parties to litigation.” Id. at 20, 383 P.3d at 698. “Even though a
potentially illegal action may affect the litigant as well as a third party, the litigant may not rest
his claims on the rights or legal interests of the third party.” Id. Standing focuses on the party
seeking relief and not on the issues the party wishes to have adjudicated. Van Valkenburgh, 135
Idaho at 124, 15 P.3d at 1132; Boundary Backpackers v. Boundary Cty., 128 Idaho 371, 375, 913
P.2d 1141, 1145 (1996) (quoting Miles, 116 Idaho at 639, 778 P.2d at 761).
In this case, Partner lacks standing because she cannot satisfy the second prong of the
criteria articulated in Shepherd. Partner does not have a legally recognized, protected relationship
with Child. She is not related to Child by blood or by marriage. She did not adopt Child at the
time of her birth, and Mother has since refused to consent to the adoption. She is not the guardian
of Child, and there is no Idaho statute which authorizes Partner to direct the care, custody or
control of Child in any way. The whole purpose of Partner’s constitutional challenge is to obtain
the legal status that would enable her to raise Child’s claim in the first place. Without first having
a legally recognized, protected relationship, she cannot assert Child’s constitutional claim.
Partner’s position is further complicated by Mother’s constitutional interests, which we
must also consider. As stated previously, Mother has a recognized constitutional right to direct
the care, custody, and control of Child. Troxel, 530 U.S. at 66; Leavitt v. Leavitt, 142 Idaho 664,
670, 132 P.3d 421, 427 (2006). Mother has made the decision not to assert Child’s constitutional
claim. If we were to allow Partner to assert Child’s claim without a legally protected
relationship, we would be undermining Mother’s constitutional rights. This we will not do.
Partner also argues that she has her own constitutional claim. She cites Stanley v. Illinois,
405 U.S. 645, 652 (1972), to support her position. Stanley involved a challenge to an Illinois
statute which declared children wards of the state upon the death of their unmarried mother.
Peter Stanley and Joan Stanley lived together on and off over a period of eighteen years. They
had three children together. When Joan passed away, the couple’s three children were declared
wards of the state simply by virtue of their mother’s death. The state took the position that unwed
fathers were presumptively unfit parents. Peter challenged the constitutionality of the statute,
arguing that he was denied due process of law. The Supreme Court of the United States agreed
with him, holding that Peter was entitled to a hearing to determine whether he was a fit parent,
and that by failing to hold such a hearing and granting such a hearing to other parents before
their children were removed from their custody, deprived him of the equal protection of the laws
guaranteed by the Fourteenth Amendment.
Partner’s reliance on Stanley is misplaced. Peter’s equal protection claim was based on
the state’s failure to grant him equal protection of the laws—not the children. In this case, the
equal protection claim has been framed as discrimination against Child. To the extent such a
claim exists, it belongs to Child and the only proper party who can raise that claim at this time is
Mother. As such, we hold that the magistrate court did not err in dismissing Partner’s claim.
V.
CONCLUSION
The judgment of the magistrate court is reversed in part and affirmed in part. We remand
this matter to the magistrate court to vacate the temporary visitation order that was entered. Costs
on appeal to Jane Doe I.
Chief Justice BURDICK, and Justices EISMANN, JONES and HORTON CONCUR.