Moreau v. Sylvester, Sylvester v. Moreau

Robinson, J.,

¶ 44. dissenting. Although I acknowledge that father presents this case as a challenge to Titchenal, I do not believe that the question actually raised by this case is whether “equity provides a jurisdictional basis for de facto parents to petition the family court for custody, parentage and visitation in the absence of a statutory right to do so, and notwithstanding the holding in Titchenal that equity confers no jurisdiction in the civil *205court for such claims.” See ante, ¶ 19. Nor do I believe that the question in this case is whether a third-party nonparent is entitled to parent-like rights such as parent-child contact. See ante, ¶¶ 22-26. Notwithstanding father’s invocation of equity, this is a statutory parentage action, and the majority’s opinion accordingly expands the reach of the Titchenal decision well beyond the basis upon which it was decided, directing Vermont’s decisional law squarely away from the modern trend.

¶ 45. The core holding in Titchenal was that, in the absence of a statutory basis for doing so, the superior court, which did not even have statutory authority to decide ordinary cases concerning custody and visitation at the time Titchenal was decided, could not invoke its general equitable powers to assign a nonparent parent-like rights. Titchenal v. Dexter, 166 Vt. 373, 377, 693 A.2d 682, 684 (1997). The putative parent in that case did not bring a statutory parentage action; she essentially asked the superior court, as the court of general jurisdiction at the time, to invoke its general equitable authority to protect a long-established functional parent-child bond. This Court had no interest in carving out a new basis for civil court jurisdiction in order to develop a jurisprudence of equitable parenthood; in rejecting the putative mother’s petition, it relied heavily on the fact that she was not basing her claim on an established statutory source. The Court explained:

[U]nder the scheme advocated by plaintiff and amicus curiae, the family court would adjudicate disputes concerning parental rights and responsibilities and parent-child contact within the parameters and criteria set forth in statutory divorce, parentage, dependency and neglect, nonsupport and separation, relief-from-abuse, and at times guardianship and adoption proceedings, while the superior court would exert.its equitable powers to consider such disputes arising outside these statutory proceedings.
We find no legal basis for plaintiff’s proposal. Courts cannot exert equitable powers unless they first have jurisdiction over the subject matter and parties.

Id. at 376-77, 693 A.2d at 684 (citations omitted); see also id. at 376 n.2, 693 A.2d at 684 n.2 (“Regardless of whether we view parent-child contact (visitation) as a limited form of parental rights and responsibilities (custody) or as a limitation upon *206another’s parental rights and responsibilities, such rights may be granted only in a jurisdictionally sound custody proceeding.”); id. at 377-78, 693 A.2d at 684-85 (finding no underlying legal basis for plaintiffs claim that would allow the superior court to apply its equitable powers to adjudicate her claim); id. at 378-79, 693 A.2d at 685 (distinguishing the custody-related cases cited by plaintiff and amicus curiae because they “involve decisions made within the context of statutory proceedings”). Although this Court undeniably expressed skepticism about the concept of a “de facto” parent in the Titchenal opinion, the decision turned on the procedural and jurisdictional posture of the case. This conclusion is not only supported by a reading of Titchenal itself; as set forth more fully below, it is the only reading of Titchenal that is compatible with this Court’s subsequent opinions.

¶ 46. In marked contrast to the putative mother in Titchenal, defendant here did not file an equitable claim in a court of general jurisdiction; instead, he filed a statutory parentage action in the family court — a claim that is not subject to the analysis of equity and jurisdiction that drove this Court’s decision in Titchenal and that does not require us to revisit or overrule our holding in Titchenal. Moreover, defendant’s statutory parentage claim does not raise the question of whether defendant, as a legal stranger to the children, is entitled to contact with them on the basis of his longstanding relationship.17 Instead, it raises an entirely distinct legal issue: is defendant, the putative parent in this parentage action, the children’s legal parent? This is the same threshold question raised in any parentage action.18 What makes it complicated here is that the putative father in this case was concededly never married to the children’s legal parent, and he does not assert a biological connection to the children. Neither *207Titchenal nor other cases in which a third party nonparent has sought contact with a child definitively answers the question of whether Vermont’s parentage statute authorizes a parentage claim under these circumstances. The question presented in this case is not whether equity provides a jurisdictional basis for defendant’s claim; it is whether and under what circumstances Vermont’s parentage statute, 15 V.S.A. §§ 301-306, permits a determination of parentage when a .putative parent is neither married to a child’s legally-recognized parent, nor biologically related to that parent.19

¶ 47. Although a biological connection with a child and marriage to a child’s parent at the time of the child’s birth are both significant factors supporting a finding of parentage, a review of our case law, applicable statutes, and decisions from other states makes it clear that these factors are not always necessary to establish parentage. This case calls upon this Court to elaborate on the parameters of legal parenthood, and to apply that analysis, in the context of a motion to dismiss, to a fact pattern that is not squarely resolved by any prior decisions of this Court.20

I.

¶ 48. The majority’s implicit answer to the central question in this case is based on a reinterpretation of this Court’s existing precedents on the subject, including decisions far more recent than Titchenal; is inconsistent with the language and structure of the parentage statute as well as Vermont’s statutes more broadly; undermines the expressed intent of the Legislature; and drives Vermont law in a direction squarely at odds with the modern trend in other jurisdictions.

*208A.

¶ 49. This Court recently addressed the question actually presented here in a closely analogous case. Miller-Jenkins v. Miller-Jenkins, 2006 VT 78, 180 Vt. 441, 912 A.2d 951. Lisa and Janet Miller-Jenkins lived together in Virginia for several years in the late 1990s and early 2000s. During that time, they traveled to Vermont and joined in a civil union. After that, back in Virginia, they planned to have and raise a child together. Lisa carried the child, conceived with sperm from an anonymous donor that they selected together, and Janet was present in the delivery room when the child was born. Several months after the child’s birth, they moved their family to Vermont. Lisa and Janet separated about a year later, and Lisa moved back to Virginia with the child. Lisa filed for civil union dissolution in Vermont, and consistent with Lisa’s request, the court awarded her temporary legal and physical rights and responsibilities for the minor child, with Janet exercising specified parent-child contact. Id. ¶ 4. Shortly after that order, Lisa stopped allowing Janet to have contact with their child and filed a parentage action in Virginia, initiating an interstate jurisdictional struggle between Vermont and Virginia courts concerning Janet’s parental status and rights and obligations. The Vermont court recognized Janet’s status as a legal parent of the child, and the Virginia court denied it. Id. ¶¶ 5-8. After several orders by both courts, this Court heard the case on appeal. Much of this Court’s opinion focused on the interstate jurisdictional issues, but this Court also addressed the validity of the Vermont trial court’s parentage determination. Id. ¶ 41.

¶ 50. Lisa pointed to the parentage statute — in particular its use of the term “natural parent” and the presumptions embedded in that statute — and argued that the statute demonstrated that a nonbiological putative parent in Janet’s shoes could not be a legally recognized parent. This Court concluded that the parentage statute does not purport to answer the question of who is a parent, and rejected the suggestion that the use of the term “natural” in the parentage statute reflects a “legislative intent that only biological parents can be parents for the purposes of the parentage statute.” Id. ¶ 54. The Court explained:

We find this to be an overly broad reading of the language. The parentage act does not include a definition of “parent.” It does not state that only a natural parent *209is a parent for purposes of the statute. In fact, the statute is primarily procedural, leaving it to the courts to define who is a parent for purposes of a parentage adjudication. Given its origin and history, it is far more likely that the legislative purpose was to allow for summary child support adjudication in cases where biological parenthood is almost indisputable.

Id. (emphasis added).

¶ 51. Examining the parentage statute more broadly, this Court expressly rejected the suggestion that the inapplicability of any of the listed statutory presumptions regarding parentage doomed Janet’s parentage claim: “Where the presumption cannot apply, it does not mean the individual is not a parent; it simply means we must look to see whether parentage exists without the use of the presumption.” Id. ¶ 53. Accordingly, this Court considered “the ultimate question” of whether Janet was a parent within the meaning of the parentage statute without consideration of the presumptions reflected in that law. Id. ¶ 55. This Court explained, “We have held that the term ‘parent’ is specific to the context of the family involved.” Id.; see also Columbia v. Lawton, 2013 VT 2, ¶ 29, 193 Vt. 165, 71 A.3d 1218 (“The determination of an individual’s status, or potential status, as a parent requires consideration of a host of factors, including but not limited to a child’s genetic connection, or lack thereof, to a putative parent.”).

¶ 52. In Miller-Jenkins, this Court listed various considerations in support of its determination that Janet was a legal parent of the child, including, “first and foremost,” that Janet and Lisa were in a valid legal union at the time of the child’s birth. 2006 VT 78, ¶ 56. However, the Court did not rest its conclusion on that factor. Instead, the Court recognized the following other factors as relevant to its conclusion:

It was the expectation and intent of both Lisa and Janet that Janet would be IMJ’s parent. Janet participated in the decision that Lisa would be artificially inseminated to bear a child and participated actively in the prenatal care and birth. Both Lisa and Janet treated Janet as IMJ’s parent during the time they resided together, and Lisa identified Janet as a parent of IMJ in the dissolution petition. Finally, there is no other claimant to the status of parent, and, as a result, a negative decision would leave IMJ with only one parent.

*210Id. Although the fact that the parties had jointly decided to have a child using donor insemination, and the fact that they were joined in civil union at the time of the child’s birth, were both obviously central to the analysis, this Court specifically declined to say which factors were essential or dispositive:

This is not a close case under the precedents from other states. Because so many factors are present in this case that allow us to hold that the nonbiologically-related partner is the child’s parent, we need not address which factors may be dispositive on the issue in a closer case.

Id. ¶58.21

¶ 58. In Miller-Jenkins, this Court recognized that the Legislature has left the task of defining the contours of parenthood to us, and identified a host of factors other than biology and a legal relationship with an acknowledged parent as relevant to the question of who is a parent. The majority in this case now rewrites and significantly narrows these conclusions, suggesting that the Miller-Jenkins decision hinged narrowly on the legal connection, in the form of a civil union, between the putative mother and the birth mother. Ante, ¶ 17. The implication of the majority’s analysis is that if faced with facts identical to those presented in Miller-Jenkins, except with parents who were not joined in a legally recognized status at the time the child was conceived, this Court could deny the nonbiological mother’s claim out of hand. That is the very implication this Court took pains to avoid in Miller-Jenkins by relying on the parties’ civil union as a persuasive, but not necessary or dispositive, factor. In the name of upholding one precedent — Titchenal — the majority has expanded that decision’s reach while reinterpreting and dramatically scaling back a more recent and relevant one.

B.

¶ 54. This Court’s suggestion in Miller-Jenkins that the legal status of “parent” can arise from a range of factors, and is not necessarily dependent upon a biological connection or a legal relationship between putative parent and birth parent, is entirely *211consistent with the language and structure of Vermont’s parentage statute. See Russell v. Armitage, 166 Vt. 392, 403, 697 A.2d 630, 637 (1997) (“Our goal in interpreting statutes is to effect the intent of the Legislature, which we attempt to discern first by looking to the language of the statute.”). That statute provides: “An action to establish parentage in cases where parentage has not been previously determined either by an action under this subchapter or by adoption, may be brought by ... a person alleged or alleging himself or herself to be the natural parent of a child ...” 15 V.S.A. § 302(a).

¶ 55. A fuller examination of the parentage statute as a whole buttresses our conclusion in Miller-Jenkins that the statute as a whole does not answer the question of who qualifies to be a legal parent, and that a biological connection with a child’s parent at the time of birth is not indispensable to a parentage claim. See Ran-Mar, Inc. v. Town of Berlin, 2006 VT 117, ¶ 5, 181 Vt. 26, 912 A.2d 984 (stating that “[w]e construe all parts of the statutory scheme together, where possible, as a harmonious whole”).

¶ 56. On the one hand, the statute provides for the conduct of genetic tests in connection with a claim of parentage. See, e.g., 15 V.S.A. § 304(a) (“On motion of a party, the court shall require the child, the defendant or defendants, and any acknowledged parent to submit to appropriate genetic testing for the determination of parentage.”). On the other hand, the statute states that “[t]he results of genetic testing are relevant to proceedings under this chapter in order to prove parentage or to disprove parentage.” 15 V.S.A. § 304(b) (emphasis added). If a putative parent’s claim to parentage rose or fell on the question of genetic connection, the Legislature would have indicated that a genetic match between putative parent and child, or the lack thereof, was dispositive on the question of parentage. Instead, the Legislature has made it clear that the result of genetic testing, while clearly a factor in the mix, does not necessarily, in and of itself, prove or disprove parentage.

¶ 57. Finally, the statute’s presumptions concerning parentage — which, as we concluded in Miller-Jenkins, are evidentiary presumptions that affect burdens of production but do not collectively frame a comprehensive definition of who is or is not a legal parent — may potentially point in conflicting directions in a given case. For example, one can imagine a case in which one putative parent declines to submit to genetic testing, another is established *212by genetic testing as more than 98% likely to be the biological parent, another was married to the mother at the time of the child’s birth, and yet another signed an acknowledgment of parentage. Under the statute, each of these putative parents would be subject to a presumption of parentage. See 15 V.S.A. § 308. This fact reinforces our conclusion in Miller-Jenkins that the statutory presumptions laid out in our parentage statute are evidentiary guides that streamline parentage actions in the vast majority of ordinary cases, but do not purport to collectively establish the legally essential feature or features of parenthood.

C.

¶ 58. This understanding of the parentage statute is also consistent with the intent underlying the statute. This Court has previously emphasized that in construing statutes, “[w]e must look ‘not only at the letter of a statute but also its reason and spirit.’ ” In re B.L.V.B., 160 Vt. 368, 371, 628 A.2d 1271, 1273 (1993) (quoting In re S.B.L., 150 Vt. 294, 301, 553 A.2d 1078, 1083 (1988)). In B.L.V.B. this Court considered whether an unmarried committed same-sex partner of a parent could adopt that parent’s child without terminating the initial parent’s legal rights to the child. The relevant statute only allowed stepparent adoptions — adoptions that allow a stepparent to become a legal parent without terminating a child’s existing legal parent’s rights — “when the adoption is made by a spouse of a natural parent.” 160 Vt. at 370, 628 A.2d at 1273. B.L.V.B.’s nonbiologieal mother could not at the time legally marry his biological mother, and the notion that same-sex couples might qualify as spouses was at odds with the established understanding of that term at the time. See, e.g., Baker v. State, 170 Vt. 194, 199, 744 A.2d 864, 868 (1999) (“Although it is not necessarily the only possible definition, there is no doubt that the plain and ordinary meaning of ‘marriage’ is the union of one man and one woman as husband and wife.”). Notwithstanding the arguably clear language of the statute, this Court looked beyond the text of the statute to its underlying intent. Concluding that “[t]he intent of the [Ljegislature was to protect the security of family units by defining the legal rights and responsibilities of children who find themselves in circumstances that do not include two biological parents,” this Court rejected a literal interpretation of the statute as inconsistent with the best interests of the children the statute sought to protect. In *213re B.L.V.B., 160 Vt. at 373, 744 A.2d at 1274. The Court authorized the stepparent adoption by the child’s nonbiological mother.

¶ 59. B.L.V.B. is not directly determinative of the issues before us today. However, this Court’s approach to interpreting and applying the adoption statute — one that emphasizes our responsibility to give effect to the Legislature’s intent to protect children by establishing and preserving their legal relationships with their parents — resonates in the present case. The Legislature expressly codified its child-centered goals in enacting the Parentage Proceedings Act:

It is the policy of this state that the legal rights, privileges, duties, and obligations of parents be established for the benefit of all children, regardless of whether the child is born during civil marriage or out of wedlock.

15 V.S.A. § 301. Like the adoption statute, the parentage statute is designed to “protect the security of family units,” by, in the case of the parentage statute, defining the legal rights and responsibilities for children whose parents are not automatically recognized by operation of law. In re B.L.V.B., 160 Vt. at 373, 744 A.2d at 1274. The Legislature’s statement of purpose does not limit the statute’s goals to the recognition of biological parent-child relationships, and the best interests of children would not logically call for such a limitation. Children with a nonbiological connection to a parent have just as much of a need for recognition of their established relationship with the other as those who were adopted by one parent in B.L.V.B. See Chatterjee v. King, 2012-NMSC-019, ¶ 37, 280 P.3d 283 (“[T]he child’s best interests are served when intending parents physically, emotionally, and financially support the child' from the time the child comes into their lives.”); Middleton v. Johnson, 633 S.E.2d 162, 169 (S.C. Ct. App. 2006) (“[T]he finding of the existence of [the parent-child] bond reflects that the singular emotional and spiritual connection, ordinarily only expected in the relationship of a legal parent and child, has been created between an adult and child who have neither blood nor adoption between them.” (quotations omitted)).

D.

¶ 60. This Court’s previous recognition that in some cases individuals with neither a biological connection to a child nor a *214legal relationship to the child’s parent may have parental rights is consistent with the modern trend. The procedural and jurisdictional foundations for recognizing the parental rights of such parents vary widely, and the consequences of such a finding are not uniform. (For example, in some states “de facto” parents stand in parity with biological parents, whereas in' some, they are entitled to visitation but not necessarily custody.) Nonetheless, in recent years a host of state courts and legislatures have embraced the principle that in limited and well-defined circumstances a person who has fully engaged as a child’s parent may have parental rights and obligations despite the lack of biological connection or legal ties to a child’s other parent, and even if the child’s other parent is fit. See, e.g., In re Custody of C.C.R.S., 892 P.2d 246, 257 (Colo. 1995) (“[T]he best interests of the child standard is the prevailing determination in a custody contest between biological parents and psychological parents.”); Smith v. Guest, 16 A.3d 920, 936 (Del. 2011) (affirming award of joint custody to adoptive mother’s former partner pursuant to statute authorizing award of custody to de facto parents); E.N.O. v. L.M.M., 711 N.E.2d 886, 892 (Mass. 1999) (recognizing visitation rights of de facto parent who had resided with the child and, with the consent and encouragement of the legal parent, had performed a share of caretaking functions at least as great as the legal parent); C.E.W. v. D.E.W., 2004 ME 43, ¶ 15, 845 A.2d 1146 (holding that nonbiological mother whose rights sprang from her status as the child’s coparent throughout her life stood in parity with the biological mother for the purpose of a custody determination); V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000) (discussed below); Chatterjee, 2012-NMSC-019, ¶ 37 (construing statute to allow woman “to establish a natural parent and child relationship with a child whom she has held out as her natural child from the moment the child came into the lives of both the adoptive mother and the presumptive mother”); Mason v. Dwinnell, 660 S.E.2d 58, 73 (N.C. Ct. App. 2008) (affirming award of joint custody to parent who gave birth to child and her former domestic partner who coparented the child from birth); Brooks v. Fair, 532 N.E.2d 208, 212-13 (Ohio Ct. App. 1988) (holding that where, with husband’s consent, mother conceived using reproductive technologies, and husband nurtured the child and held her out as his own, court would not find that husband was not the father even though he was not the child’s biological parent (cited approvingly in *215Miller-Jenkins, 2006 VT 78, ¶ 57)); T. B. v. L.R.M., 786 A.2d 913, 920 (Pa. 2001) (affirming award of partial custody and visitation to legal mother’s former domestic partner who acted in parental capacity); Rubano v. DiCenzo, 759 A.2d 959, 975 (R.I. 2000) (“[A] person who has no biological connection to a child but who has served as a psychological or de facto parent to that child may, under [limited circumstances], establish his or her entitlement to parental rights vis-a-vis the child.”); Middleton v. Johnson, 633 S.E.2d 162, 167-70 (S.C. Ct. App. 2006) (holding that mother’s ex-boyfriend had standing to seek visitation where, for nearly ten years, mother had fostered a parent-child relationship between ex-boyfriend and child and had ceded a large part of her parental responsibility to him, including having child live with ex-boyfriend about half the time, and ex-boyfriend had functioned as child’s parent); In re Parentage of L.B., 122 P.3d 161 (Wash. 2005) (discussed more fully below); In re Clifford K., 619 S.E.2d 138, 156-57 (W. Va. 2005) (recognizing that “psychological parent” has greater rights in a custody proceeding than would ordinarily be afforded a person who is neither the biological nor adoptive parent of a child); In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis. 1995).22

¶ 61. The majority’s reinterpretation of Miller-Jenkins and expansion of this Court’s prior holding in Titchenal not only conflicts with the language, structure and intent of the parentage statute, but places Vermont outside of the modern trend in family law that recognizes that biological connection and/or legal relationship to a child’s legal parent are significant but not always essential factors in the parentage determination.

II.

¶ 62. Having recognized that the Legislature has left it to this Court to articulate a framework for defining parenthood, this Court’s task in this case is to determine what factors, if any, are necessary to a claim of parentage. If no single factor, or collection of factors, is dispositive, what factors are relevant to the consideration, and what is their relative weight?

*216A.

¶ 63. As set forth above, our case law makes it clear that a biological connection between parent and child is not a necessary prerequisite to parental status. See, e.g., Columbia, 2013 VT 2, ¶ 29 n.2 (explaining that genetic connection with child is neither necessary nor sufficient to establish parentage). However, the fact of a biological connection is undoubtedly relevant to the parentage analysis because, as we have recognized, “[a] biological connection . . . creates the opportunity to establish a parent-child relationship, but is not, by itself, tantamount to parenthood.” Id. ¶ 23; see also 15 V.S.A. § 304(b) (results of a genetic test relevant to determination of parentage).

¶ 64. Moreover, we have said that a formal legal relationship between a putative parent and a child’s legally recognized parent at the time of birth is an “extremely persuasive” factor supporting parentage. Miller-Jenkins, 2006 VT 78, ¶ 58; see also 15 V.S.A. § 308(4); 15 V.S.A. § 1204(f).

¶ 65. We have also recognized that the presence of an established parent-child relationship — not merely a close bond, but a relationship understood by the parent and child as a parent-child relationship — can be a significant and in some cases overriding factor in the analysis. In Godin v. Godin, this Court considered a post-judgment motion in a divorce case in which an adjudicated father sought genetic testing because rumors within the family had caused him to suspect that the child he had raised during the marriage was not his biological offspring. 168 Vt. 514, 725 A.2d 904 (1998). Although this Court’s affirmance of the trial court’s refusal to reopen the final divorce order that adjudicated the father’s parentage was based primarily on considerations of finality, this Court acknowledged the significance of an established parent-child relationship, even in the absence of a biological connection: “Although we understand plaintiff’s interest in ascertaining the true genetic makeup of the child, we agree with the many jurisdictions holding that the financial and emotional welfare of the child, and the preservation of an established parent-child relationship, must remain paramount.” Id. at 523, 725 A.2d at 910. Noting that the adjudicated father had raised the child as his own for fourteen years — eight during the marriage, and six as a noncustodial parent thereafter — this Court wrote, “It is thus readily apparent that a parent-child relationship was formed, and *217it is that relationship, and not the results of a genetic test, that must control.” Id. at 524, 725 A.2d at 911.

¶ 66. We have likewise found a closely related factor — the extent to which a putative parent has assumed and exercised the responsibilities of parenthood — relevant to the analysis. In Columbia, we concluded that the fact that the putative father had made no efforts to “take responsibility for the child by establishing a relationship, providing nurturing, offering support, or asserting his legal rights” undermined his parentage claim, even in the face of a potential biological link. Columbia, 2013 VT 2, ¶ 28. Although we pointed to the putative father’s failure to assume the mantle of parenthood as a factor undermining his claim to parentage, our holding cut both ways. In denying that putative biological father’s request for a genetic test, we implicitly affirmed the parental status of a father who had acknowledged parenthood, accepted the responsibilities of parenting, and raised the child as his own for several years prior to the parentage adjudication — notwithstanding the fact that he was not married to the child’s mother, and even assuming for the purposes of our analysis that he was not genetically connected to the child. Id. ¶ 2.

¶ 67. Relatedly, we have considered the parties’ intentions and expectations as important factors in discerning who is a parent. See Miller-Jenkins, 2006 VT 78, ¶ 57 ("We adopt the result in this case as a matter of policy, and to implement the intent of the parties.”). In addition to the parties’ shared intention at the time of a child’s conception, we have considered their actions and representations to the broader world in raising the child. See, e.g., id. ¶ 56 (considering fact that both Lisa and Janet treated Janet as child’s parent prior to their break-up as a relevant factor in the parentage analysis); Godin, 168 Vt. at 523, 725 A.2d at 910 (“Where the presumptive father has held himself out as the child’s parent, and engaged in an ongoing parent-child relationship for a period of years, he may not disavow that relationship and destroy a child’s long-held assumptions . . . .”).

¶ 68. Finally, we have pointed to the presence or absence of a competing claimant for parental status as a factor in the analysis. See, e.g., Miller-Jenkins, 2006 VT 78, ¶ 56 (“Finally, there is no other claimant to the status of parent, and, as a result, a negative decision would leave [the child] with only one parent.”); Godin, 168 Vt. at 524 n.3, 725 A.2d at 911 n.3 (noting that a finding in favor of the parent seeking to disavow his parentage would leave the *218child without the benefit of a second parent, and the associated economic and emotional well-being).

B.

¶ 69. These factors are not inconsistent with factors identified by other jurisdictions as bearing on the question of who qualifies as a parent. Most if not all of the tests applied by the various courts in the out-of-state cases cited above revolve around common themes. Many of these cases use the terms “de facto parent” or “psychological parent” to describe a parent whose legal relationship with a child derives from the intentions and actions of the parents, a parent’s assumption of parental duties and relations for an extended period of time, and/or the formation of a significant parent-child bond. Although this Court has rejected a claim of de facto parenthood in the context of an equitable action in the then-superior court, see Titchenal, 166 Vt. at 389-90, 693 A.2d at 692, the considerations other courts have relied upon in determining who qualifies for parental recognition under their own laws in the absence of adoption or biological connection are helpful to this Court’s task of determining who qualifies as a parent under Vermont’s parentage statute. The Washington Supreme Court has adopted the most common test, first articulated by the Wisconsin Supreme Court:

To establish standing as a de facto parent we adopt the following criteria . . . : (1) the natural or legal parent consented to and fostered the parent-like relationship, (2) the petitioner and the child lived together in the same household, (3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature. In addition, recognition of a de facto parent is limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.

In re L.B., 122 P.3d 161, ¶ 40 (quotation and citation omitted); see also In re Custody of H.S.H.-K., 533 N.W.2d at 421. A parent in the state of Washington who satisfies these criteria stands in the same shoes as any other legally recognized parent, whether *219biological, adoptive, or otherwise.23 In re L.B., 122 P.3d 161, ¶ 41. Although this Court has not framed its analysis in a specific multi-part test like that set forth above, the factors embedded in the Washington court’s parentage analysis echo the factors this Court has previously relied upon in Godin, Miller-Jenkins, and Columbia.

¶ 70. Similarly, the New Jersey Supreme Court concluded that in some cases a parent who is neither biologically related to a child, nor legally joined with the child’s recognized parent at the time of the child’s birth, may acquire the rights and responsibilities of legal parenthood for that child. V.C. v. M.J.B., 748 A.2d at 555. In that case, a lesbian couple raised twins conceived through donor insemination for two years before breaking up. They did not go through a second-parent adoption to secure the legal rights and obligations of the nonbiological mother. However, the biological mother “fostered and cultivated, in every way, the development of a parent-child bond between [the nonbiological mother] and the twins.” Id. In particular, “they all lived together in the same household as a family; . . . [the nonbiological mother] assumed many of the day-to-day obligations of parenthood toward the twins, including financial support; and ... a bonded relationship developed between [the nonbiological mother] and the twins that [was] parental in nature.” Id. The court concluded that in the contest between the mothers with respect to custody and visitation, “the legal paradigm is that of two legal parents and the standard to be applied is the best interests of the child.” Id.

¶ 71. Although that court’s jurisprudential path to this conclusion is different from the route applicable in this case — the New Jersey Supreme Court relied upon the “psychological parent” branch of its “exceptional circumstance” case law, id. at 549-50 — the court’s reasoning reinforces the considerations set forth above. Like the Washington Supreme Court in the case of In re L.B., the New Jersey court embraced the test first laid out by the *220Wisconsin Supreme Court. Id. at 551 (citing In re Custody of H.S.H.-K., 533 N.W.2d at 419). The New Jersey court elaborated on the Wisconsin test in several critical ways. With respect to the first prong, the legal parent’s fostering or consenting to the parental relationship, the New Jersey Supreme Court noted:

Obviously, the notion of consent will have different implications in different factual settings. For example, where a legal parent voluntarily absents herself physically or emotionally from her child or is incapable of performing her parental duties, those circumstances may constitute consent to the parental role of a third party who steps into her shoes relative to the child.

Id. at 552 n.6.

¶ 72. Moreover, the court explained that, although a putative parent’s participation in the decision to have a child is probative of the parties’ intentions, such participation is not essential to a finding of legal parenthood:

Such circumstances parallel the situation in which a woman, already pregnant or a mother, becomes involved with or marries a man who is not the biological or adoptive father of the child, but thereafter fully functions in every respect as a father. There is nothing about that scenario that would justify precluding the possibility of denominating that person as a psychological parent. It goes without saying that adoption proceedings in these circumstances would eliminate the need for a psychological parent inquiry altogether and would be preferable to court intervention. However, the failure of the parties to pursue that option is not preclusive of a finding of psychological parenthood where all the other indicia of that status are present.

Id. at 553.24 Finally, the court explained that “the right of the legal parent does not extend to erasing a relationship between her partner and her child which she voluntarily created and actively *221fostered simply because after the parties’ separation she regretted having done so.” Id. at 552 (quotation omitted).

¶ 73. The New Jersey Supreme Court’s decision recognizing the parental rights of a nonbiological parent who, with the biological parent’s consent and participation, assumed the full range of parental responsibilities and held herself out as the child’s parent, is not exceptional. The Supreme Judicial Court of Maine has likewise recognized the full parental status of a putative parent who acted in a parental capacity throughout a child’s life in C.E.W. v. D.E.W., 2004 ME 43. The issue in that case was whether the nonbiological mother whose rights sprang from her status as the child’s coparent throughout her life stood in parity with the biological mother for the purpose of a custody determination. The court affirmed that she did. Id. ¶ 11. With respect to the question of the underlying qualifications for such a parental status, the court said, “However this term is ultimately defined as it is fleshed out by the Legislature or the courts in the future, it must surely be limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.” Id. ¶ 14.25

¶ 74. The West Virginia Supreme Court similarly defined what it called “a psychological parent,” whose relationship with a child is subject to greater protection in custody matters than would ordinarily be the case for a nonbiological, nonadoptive parent:

[A] psychological parent is a person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills a child’s psychological and physical needs for a parent and provides for the child’s emotional and financial support. The psychological parent may be a biological, adoptive, or foster parent, or any other person. The resulting relationship between the psychological parent and the child must be of substantial, *222not temporary, duration and must have begun with the consent and encouragement of the child’s legal parent or guardian.

In re Clifford K., 619 S.E.2d at 157.

¶ 75. I do not purport to recount the specific tests applied in each of the many decisions in recent decades in which courts have extended parental rights or responsibilities beyond biological parents. I review the above cases because I believe they reinforce and further develop our own case law that has identified the intent of both the legal and putative parents to foster a parent-child relationship between the putative parent and child, the conduct and contributions of both parents in caring for and raising a child, the way in which they hold the putative parent out to the broader world as a child’s parent, and the presence or absence of other legally recognized parents26 as factors — in addition to biological connection and a legal relationship with a child’s legal parent — that are relevant to the question of whether a putative parent should be recognized as a legal parent. See Miller-Jenkins, 2006 VT 78, ¶ 56; Godin, 168 Vt. at 523, 725 A.2d at 910.27

*223C.

¶ 76. I digress to address likely but unfounded concerns about the framework for ascertaining parentage established through this Court’s existing case law prior to this case. First, it does not undermine the parental rights of fit, legal parents. That is a circular criticism; the threshold question here is who are legal parents. Recognition of the parental rights of a nonbiological parent’s in an appropriate case is no more an unreasonable threat to the other parent than enforcement of a second biological parent’s rights.

¶ 77. Moreover, the analysis this Court has undertaken in its precedents to date, as described above, does not invite unwarranted or constitutionally suspect judicial intrusion into the legally protected relationship between the child and the legal parent. As the New Jersey Supreme Court explained:

This opinion should not be viewed as an incursion on the general right of a fit legal parent to raise his or her child without outside interference. What we have addressed here is a specific set of circumstances involving the volitional choice of a legal parent to cede a measure of parental authority to a third party; to allow that party to function as a parent in the day-to-day life of the child; and to foster the forging of a parental bond between the third party and the child. In such circumstances, the legal parent has created a family with the third party and the child, and has invited the third party into the otherwise inviolable realm of family privacy. By virtue of her own actions, the legal parent’s expectation of autonomous privacy in her relationship with her child is necessarily reduced from that which would have been the case had she never invited the third party into their lives. Most important, where that invitation and its consequences have altered her child’s life by essentially giving him or her another parent, the legal parent’s options are constrained. It is the child’s best interest that is preeminent as it would be if two legal parents were in a conflict over custody and visitation.

V.C. v. M.J.B., 748 A.2d at 553-54; see also Middleton, 633 S.E.2d at 169 (“[W]hen a legal parent invites a third party into a child’s life, and that invitation alters a child’s life by essentially providing *224him with another parent, the legal parent’s rights to unilaterally sever that relationship are necessarily reduced.”).

¶ 78. The Washington Supreme Court has likewise expressly rejected the notion that its recognition of the parental rights of a person neither biologically related to a child, nor legally joined with the child’s parent, represents a step down a slippery slope that could come to include nannies, teachers, adult siblings, or parents’ exes:

[A] threshold requirement ... is a showing that the legal parent “consented to and fostered” the parent-child relationship. The State is not interfering on behalf of a third party in an insular family unit but is enforcing the rights and obligations of parenthood that attach to de facto parents; a status that can be achieved only through the active encouragement of the biological or adoptive parent by affirmatively establishing a family unit with the de facto parent and child or children that accompany the family.

In re L.B., 122 P.3d 161, ¶ 47 (citation omitted); see also Middleton, 633 S.E.2d at 169 (recognizing that parenting conduct of putative parent “must be done for reasons other than financial gain, which guarantees that a paid babysitter or nanny cannot qualify” for parental rights).

¶ 79. Although this Court has not elaborated on the prerequisites to a showing that a recognized parent has consented to another’s acting as a parent, it is clear from the contexts in which we have relied on a putative parent’s established relationship with a child as a factor supporting parentage that the requisite level of engagement is indistinguishable from that of any other legally recognized parent, and that the participation of the recognized parent in promoting a parent-child relationship between the child and putative parent is essential. See, e.g., Miller-Jenkins, 2006 VT 78, ¶ 56 (noting that putative mother co-parented child from birth, and both parents held putative mother out as the child’s other parent); Godin, 168 Vt. at 523, 725 A.2d at 910 (relying on fact that father raised child as his own, and he and child’s mother held child out as father’s). The requirements for and limitations on the ability of a nonbiological, nonlegally joined putative parent to establish parental rights reflected in the above decisions from other courts should and do apply with equal force here. To the *225extent the majority suggests that this approach “would allow any former domestic partner to compel a biological parent to defend against the unrelated ex-partner’s claim that he or she is a ‘parent,’ ” ante, ¶ 21, the majority fails to recognize the high bar faced by a putative parent with no biological link to the child or legal link to the child’s parent.

¶ 80. Finally, I reject the notion that in the name of judicial efficiency, or avoiding litigation, we should arrest and dial back our case-by-case approach to considering and identifying factors that determine parental status in favor of a very narrow bright line that requires either a biological connection or a legal relationship with a birth parent to support a claim of parenthood. Doing so cannot possibly be in the best interests of children because it denies a class of children with an established parent-child relationship with a nonbiological parent not legally joined with their acknowledged parent — formed with the participation of the children’s acknowledged parent — legal protection for their relationship with that parent, depriving them of the financial, emotional and developmental support of that parent. See In re B.L.V.B., 160 Vt. at 373, 628 A.2d at 1274 (construing adoption statute in a way that promotes the best interests of children).

¶ 81. Moreover, the notion of this kind of narrow, bright-line rule in the context of parentage and child custody disputes is incongruous. Per the Legislature’s instructions, Vermont’s courts already apply a multi-factorial, case-by-case analysis of the best interests of children to determine parental rights and responsibilities and parent-child contact in every divorce and parentage case in which these matters are contested. See 15 V.S.A. § 665. This is an area in which the law recognizes the wide variation in family circumstances, and the need for flexibility in fashioning an order that best suits the specific needs and best interests of each individual child. The Legislature could easily have chosen to reduce litigation and make custody determinations more efficient by establishing a conclusive presumption in favor of, for example, an established primary caregiver. It has not. Harris v. Harris, 149 Vt. 410, 418, 546 A.2d 208, 214 (1988). Instead, the law requires that a court consider each of a host of designated factors in assigning parental rights and responsibilities. Id. Against this backdrop, the application of a narrow, bright-line rule that has the effect of preventing a parent from even getting to the best interests analysis in the very small class of cases at issue here is *226incompatible with the general approach to protecting children reflected in our divorce and parentage statutes.

¶ 82. Nor is the majority’s approach likely to channel human behavior in a desirable direction. Although adoption by the nonbiologieal parent would have been preferable in a case like this, most people do not generally study legal precedents in ordering their family relations. Their failure to do so should not operate to the detriment of minor children who had no say in the matter.

III.

¶ 83. The final task is to apply the above considerations to the facts of this case. The standard of review makes a huge difference here. This Court is not reviewing the trial court’s findings based on an evidentiary hearing. Nor is it reviewing a summary judgment ruling based on undisputed facts and disputed facts viewed in the light most favorable to the nonmoving party. The trial court dismissed putative father’s claim here on the pleadings. “Dismissal under Rule 12(b)(6) is proper only when it is beyond doubt that there exist no facts or circumstances consistent with the complaint that would entitle the plaintiff to relief.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.). The threshold a plaintiff must cross in order to meet the notice-pleading standard is “exceedingly low.” Id. (quotation omitted). Moreover, in reviewing the trial court’s grant of a motion to dismiss, this Court must take all facts alleged in the complaint as true. Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997).

¶ 84. In this case, putative father has alleged that both children call him “daddy or papa,” that he was in the delivery room when M.S. was born and was one of the first people to hold her; he has been involved in L.M.’s life since she was six months old and M.S.’s since birth — participating in their respective first steps, first words, and other developmental milestones; even before moving in with the children’s mother, he visited L.M. and M.S. almost every day during the first six months of M.S.’s life; he lived with mother and the children from the time M.S. was about six months old, in August 2006, through March 2009; he changed diapers, tended to them when they cried in the middle of the night, and did all the things a good father does when needed by his or her child; he was involved with M.S.’s preschool programming; he went to all school and ballet performances in which *227either child was involved; he provided all the basic necessities for the children such as food, shelter and clothing, and also paid for ballet lessons and school supplies; after mother and the children moved out in March 2009 until April 2011, he spent about 600 days of the next 730 days with the children; in April 2011, their mother voluntarily left them to live with him at least six days a week for nearly a year until March 2012; mother frequently cancelled or no-showed for her regular scheduled visits with the children during that time period; and mother abruptly removed the children from the schools they were attending while living with putative father with only three months remaining in the term.

¶ 85. Father has provided far more than bare notice of his claims; he has made extensive allegations that could potentially support a finding of parentage. We cannot judge this case as if his allegations were undisputed facts subject to summary judgment review; father has not had a chance to develop his case. Although he unquestionably faces substantial hurdles — the showing he must make in the absence of a biological link to the children or of a legal relationship to their mother is a challenging one — I cannot conclude that given the above allegations it is beyond doubt that father cannot muster sufficient evidence to make that showing. I would reverse and remand for further proceedings.

¶ 86. When confronted with a question unanswered by the Legislature, our task is to do our best to discern the Legislature’s intent and rule accordingly. I believe the majority got it wrong. Thankfully, we are not the last word in such matters, and the Legislature has the power to pass laws to ensure that other children in L.M. and M.S.’s circumstances are not denied the continuing financial, emotional, and developmental support of one of their actual parents because their biological parent has “pulled rank” and denied the other’s parental status after promoting and cultivating that parent’s relationship with the child for most or all of the children’s lives — in this case six years. If the majority’s analysis were to stand, the consequences for some children, potentially including L.M. and M.S., would be nothing short of tragic.

Accordingly, cases like Troxel v. Granville, 530 U.S. 57 (2000), dealing with grandparent visitation, are inapposite. Defendant here is not requesting contact with the children even though he is not their parent; by filing a parentage action, he is asserting that he is their parent.

I focus on the parentage action because that matter determines the threshold question of whether defendant is the legally recognized parent of either or both of these children. If he is, the trial court may nonetheless deny him parental rights and responsibilities and curtail or even deny him parent-child contact in the context of the relief-from-abuse case or the parentage case if such an order is supported by competent evidence concerning the children’s best interests and defendant’s parental fitness. But it may not base its decision on the ground that he is not the children’s legal parent.

I use the term “biological” because this is the term this Court, and many other courts, have commonly used. I recognize that this more general term arguably encompasses two different kinds of relationship: genetic and gestational. In most cases, a gestational parent — the parent who gives birth to a child — is also a genetic parent of a child, but in cases in which a gestational parent carries another’s egg, that may not be the case. In this case, it is defendant’s lack of genetic connection with the children, not the fact that he did not bear them, that presents the potential obstacle to his parentage claim.

We consider this case on appeal from the trial court’s dismissal of defendant’s claim based on the pleadings. He has not yet had an opportunity to present the evidence supporting his claim of parentage. The only question before us today is whether, based on his allegations, he might possibly be able to prove parentage notwithstanding his lack of biological connection to the children and the fact that he was not married to their mother when either of them was born.

The majority reinterprets the Miller-Jenkins holding, suggesting that it rests on the presumption of parentage applicable to the spouse, whether through marriage or civil union, of a biological parent, and/or the fact that the mothers planned together to conceive the child through donor insemination. Ante, ¶¶ 15-18.

The American Law Institute has likewise recognized that parental rights can arise from intentions and conduct, rather than biology or legal ties. Am. L. Inst., Principles of the Law of Family Dissolution § 2.03 (2002).

The source of the Washington court’s authority to award custody or visitation to the nonbiological, nonadoptive parents was different than the source of the family court’s authority in this case — Washington State’s common law recognized “the significance of parent-child relationships that may otherwise lack statutory recognition” and authorized the extension of parental status to nonbiological, nonadoptive parents, In re L.B., 122 P.3d 161, ¶ 20, whereas defendant’s claim here is based on Vermont’s parentage statute which leaves the central status of “parent” undefined. Nevertheless, the factors woven into the Washington court’s analysis apply in this context as well.

The scenario described here parallels the circumstances of the adjudicated father whose rights were challenged by the putative biological father in the case of Columbia v. Lawton, in which we implicitly affirmed the adjudicated father’s parental status in derogation of that of the claimed biological father. Columbia, 2013 VT 2, ¶ 2.

The American Law Institute has framed the test as requiring that the putative parent “for a significant period of time not less than two years, (i) lived with the child and, (ii) for reasons primarily other than financial compensation, and with the agreement of a legal parent to form a parent-child relationship, or as a result of a complete failure or inability of any legal parent to perform caretaking functions, (A) regularly performed a majority of the caretaking functions for the child, or (B) regularly performed a share of caretaking functions at least as great as that of the parent with whom the child primarily lived.” Am. L. Inst., Principles of the Law of Family Dissolution § 2.03(1)(c) (2002).

We need not address the question of whether the presence of two legal parents defeats a third putative parent’s claim. See D. Wald, The Parentage Puzzle: The Interplay Between Genetics, Procreative Intent, and Parental Conduct In Determining Legal Parentage, 15 Am. U. J. Gender Soc. Pol’y & L. 379, 406-10 (2007) (arguing for legal recognition of more than two parents in certain limited circumstances). For the purposes of this case, and of our discussion of this factor in past cases, the absence of even a second parent is a legally significant factor in the parentage analysis.

Although many of the cases cited herein involved same-sex parents, courts have applied the same analysis to parentage claims by putative fathers. See, e.g., Middleton, 633 S.E.2d at 167 (allowing claim for visitation by mother’s ex-boyfriend who developed parent-child relationship with mother’s encouragement, and with whom child lived half the time); Atkinson v. Atkinson, 408 N.W.2d 516, 520 (Mich. Ct. App. 1987) (nonbiologieal putative father entitled to seek custody where he and son had a close and affectionate father-son relationship cultivated with mother’s participation, he was active in son’s life and was the only father son had ever known, and he was prepared to take on the rights and responsibilities of supporting the child); see also V.C. v. M.J.B., 748 A.2d at 552-53 (analogizing case involving acknowledged mother and putative mother to one involving acknowledged mother and putative father). Nothing about the logic of our own reliance on factors beyond biology and a legal relationship between the parent and putative parent is limited to claims fay same-sex parents. The best interests of children in protection of established relationships with their parents do not turn on the genders of the parents.