Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and
Peters, Js.See footnote 1
PROCEDURAL HISTORY
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial district of
Middlesex and tried to the court, Stanley, J.; judgment dissolving
the marriage and granting certain other relief, from which the
plaintiff and a minor child in the parties' custody filed a joint
appeal, and the defendant filed a separate appeal. Reversed in
part; further proceedings.
Helen F. Ryan and Daniel B. Ryan, for the appellant in Docket
No. 15436, appellee in Docket No. 15437 (plaintiff).
Daniel Z. Shapiro, for the appellant in Docket No. 15436,
appellee in Docket No. 15437 (minor child).
Frank C. White, Jr., for the appellee in Docket No. 15436,
appellant in Docket No. 15437 (defendant).
Christine M. Whitehead, Louis I. Parley and William T.
Fitzmaurice filed a brief for the American Academy of Matrimonial
Lawyers, Connecticut Chapter, as amicus curiae.
Richard Blumenthal, attorney general, and Gregory T. D'Auria
and Jane R. Rosenberg, assistant attorneys general, filed a brief
for the attorney general as amicus curiae.
BORDEN, J. This dissolution of marriage case involves a
custody dispute concerning a minor child who was conceived by
artificial insemination between the defendant husbandSee footnote 2 and a
surrogate mother (surrogate) whose parental rights and whose then
husband's parental rights, if any, have now been terminated.
Although the surrogate turned the child over to the plaintiff wife
and the defendant upon the birth of the child, and although both
parties raised the child, who is now age fourteen, as their
daughter, no adoption proceedings were ever instituted by which the
plaintiff would have become the adoptive mother of the child.
The trial court, Stanley, J., ruled that it had no subject
matter jurisdiction to adjudicate the custody of the minor child
incident to the dissolution proceeding because she was not a
"`child of the marriage'" within the meaning of our dissolution
statutes. The principal issues on appeal involve whether the trial
court had subject matter jurisdiction, pursuant to General Statutes
§ 46b-56, to adjudicate the child's custody, and whether the
plaintiff legally may be considered to be a parent of the child for
purposes of that adjudication.
The plaintiff and the minor child, acting through her attorney
appointed by the trial court, jointly appeal from the judgment of
dissolution challenging the trial court's determination that it had
no jurisdiction to adjudicate the custody of the child. The
defendant also appeals from the judgment challenging the trial
court's determination regarding the causes of the marital
breakdown, and its awards regarding allocation of the assets of the
parties, alimony and attorney's fees.See footnote 3 We conclude that: (1) the
child is not a child of the marriage within the meaning of our
marital dissolution statutes; (2) nonetheless, the trial court had
subject matter jurisdiction, pursuant to § 46b-56,See footnote 4 to adjudicate
the custody of the child as between the defendant, as the child's
father, and the plaintiff, as a third person asserting a claim to
custody of the child; and (3) for purposes of that adjudication,
under the undisputed facts of this case the statutory presumption
afforded by General Statutes § 46b-56bSee footnote 5 has been rebutted as a
matter of law. We also conclude that the trial court's
determination regarding the causes of the marital breakdown is
supported by the evidence. Accordingly, we reverse the judgment in
part and remand the case for a trial on the issue of custody and on
the necessarily related financial issues.
The plaintiff brought this dissolution action in January,
1991. In her original complaint, she alleged that she and the
defendant had one minor child "issue of their marriage," who was
born on April 30, 1983. On February 11, 1991, the plaintiff and the
defendant entered into a signed stipulation for temporary orders,
without prejudice to the right of either party "to reclaim all
matters to the court so that the court at a later date could have
a full hearing" on any of the matters covered by the stipulation.
The stipulation provided for joint custodySee footnote 6 of the child "but with
the principal place of residence" of the child with the plaintiff,
and also provided that the child would reside with the defendant on
certain weekends.See footnote 7 This stipulation was approved by the court on
the same date.See footnote 8
In June, 1993, however, the plaintiff amended her complaint by
deleting the allegation that the child was the child of the
marriage, and alleged instead that "[t]he plaintiff and the
defendant have been acting as the parents of [the child] since the
child's birth. The plaintiff is neither the biological mother, nor
has she legally adopted the minor child. The plaintiff has no
knowledge whether the defendant is the natural father of said child
or not, and the defendant has not yet legally adopted said child to
the best of her knowledge." The plaintiff included in her claims
for relief orders for sole or joint custody of the child,
visitation rights and support. The defendant, in his answer filed
in December, 1994, left the plaintiff to her proof regarding her
allegation that she had been acting as the child's parent, denied
that the plaintiff did not know whether the defendant was the
child's natural father, and admitted the rest of the allegations,
namely, that the defendant had been acting as the child's parent,
that the plaintiff was neither the biological nor the adoptive
mother of the child, and that the defendant had not legally adopted
the child. In addition, the defendant, by way of special defenses,
claimed that the child was not a child of the marriage and that,
therefore, the court lacked jurisdiction "to determine any issues
with respect to her in the context of this action."See footnote 9
In December, 1993, the defendant filed a petition in the
Middletown Probate Court for termination of the parental rights of
the surrogate and her now former husband, who was married to her at
the time of the child's birth. The defendant also filed a petition
in the Probate Court for a determination that he is the father of
the child. The Probate Court had not acted on either of these
petitions when the trial of this case began in January, 1995. On
June 28, 1995, however, the Probate Court granted the defendant's
paternity petition and adjudicated him to be the father of the
child. On September 6, 1995, the Probate Court granted the petition
for termination of the parental rights of the surrogate and her
former husband on the ground of abandonment.See footnote 10 These orders have
not been appealed, and they are, therefore, final.
Meanwhile, however, the trial of this case had been
proceeding. After seventeen days of testimony, beginning on
January 4, 1995, and ending on June 9, 1995, the trial court, in a
memorandum of decision issued on November 15, 1995, found the
following: the parties' marriage has broken down irretrievably;
there is no prospect of reconciliation; and, therefore, the
marriage should be dissolved. The court found further that the
plaintiff, who had been born in India while that nation was under
British rule, had been married in England to another British
subject and had three children from that marriage, all of whom are
now more than eighteen years of age. In 1967, the plaintiff came
to this country and worked as a companion and housekeeper for the
defendant's mother. In 1971, the parties began a relationship, and
in April, 1982, the plaintiff obtained a divorce in Florida from
her first husband. Both parties desired to have children, although
the defendant was determined to have a child with or without the
plaintiff's cooperation. The plaintiff, however, had undergone a
tubal ligation, and an attempt to reverse it was unsuccessful. The
plaintiff also suffered from permanent injuries as a result of an
automobile accident in 1972.
The trial court also found that the defendant, through an
advertisement in a Connecticut newspaper, sought a surrogate mother
to carry and deliver a baby. The court found further that the
surrogate responded, that financial arrangements were made, and
that, at the surrogate's home in Connecticut with both the
defendant and the plaintiff present, the surrogate was "impregnated
with the defendant's sperm by use of a syringe . . . ."See footnote 11 The court
also found that "[t]he surrogate mother became pregnant"; see
footnote 11; and that, throughout the prenatal period the defendant
accompanied her to doctors' appointments, where she used the
plaintiff's name, social security number and other statistical data
regarding the plaintiff. Also, on occasion the plaintiff would
accompany the defendant and the surrogate to the doctors'
appointments, and on occasion would stuff a pillow in her clothing
to simulate the appearance of being pregnant.
The plaintiff and the defendant were married on January 7,
1983, while the surrogate was approximately four months pregnant
with the child. At the time of the child's birth on April 30,
1983, the surrogate was admitted to the hospital under the
plaintiff's name, social security number and other relevant data.
The trial court also found that the defendant supplied the hospital
with the pertinent data for the child's birth certificate "under
the ongoing ruse that the birth mother was [the plaintiff]." The
court found further that, upon discharge from the hospital, the
surrogate turned the child over to the plaintiff and the defendant,
"who nurtured and raised the child with no further participation by
the surrogate mother."
The trial court noted that "[o]f significance is the fact that
the surrogate mother was married at the time of the child's birth,
although she has since had that marriage dissolved." Noting
further the presumption that a child born during wedlock is the
child of the husband, unless the presumption is rebutted by clear
and convincing proof; Schaffer v. Schaffer, 187 Conn. 224, 226, 445
A.2d 589 (1982); the court determined that the presumption had not
been rebutted by that standard of proof. In this connection, the
court noted further that it was undisputed that the child was not
the child of the plaintiff and was not, therefore, the "issue of
the marriage." The court also noted that there had been no
evidence presented during trial that the parental rights of the
surrogate or her then husband had been terminated, that blood
testing of the defendant and the surrogate showed merely that the
defendant could not be excluded as the father of the child but did
not conclusively establish his paternity, and that there had been
no evidence during trial that any probate court of competent
jurisdiction had found that the defendant was the father of the
child.
After the conclusion of the trial but before the trial court
had issued its decision, the defendant filed two motions to open
the evidence to include the two Probate Court judgments regarding
the termination of the parental rights of the surrogate and her
former husband, and the adjudication of the defendant's parentage
of the child. The trial court, however, denied these two motions,
and made "its findings based upon the evidence presented during the
seventeen days of trial."See footnote 12
On the basis of those factual findings, the trial court
concluded that it did not have subject matter jurisdiction to enter
orders regarding the custody or support of the minor child because
she was neither a child "born issue of the marriage," nor a child
adopted by both parties or a natural child of one of the parties
who had been adopted by the other. See General Statutes § 46b-58.See footnote 13
Although its ruling left "a substantial number of issues unresolved
regarding" the child, the court determined that "the best interests
of the child are not legally sufficient" to overcome what it
perceived as the "jurisdictional impasse which has been created by
the actions and inactions of the two people she has always
considered her parents." The court also rejected the request of the
child's attorney to consider the psychological and family relations
reports that had been introduced into evidence because, in the
court's view, "absent the court's jurisdiction over [the child],
such data is irrelevant in the context of the present action."
The trial court, therefore, turned to the merits of the
dissolution action, irrespective of any claims regarding the
custody of the child and her support. The court found that the
parties shared equally in the causes of the breakdown of the
marriage. In this connection, the court found that the plaintiff
had difficulty controlling her anger, particularly after consuming
alcohol, and that the defendant had engaged in physical violence
toward the plaintiff. The court found further that communication
between them had been strained, "although they appear capable of
accommodating each other when it comes to decisions regarding [the
child's] religious education and nurturing in general." It also
found, however, that their "inability or unwillingness to
subordinate their own hostilities in an effort to properly finalize
[the child's] legal status vis-a-vis each of them underscores the
breakdown of the marriage." In addition, the court found that the
defendant, through inheritance and sound investment practices, had
acquired substantial assets, and that the plaintiff had maintained
a reasonably stable and fit home environment. The court also found
that the plaintiff had limited employment skills that were
diminished further as a result of her age and health problems.
Accordingly, the trial court rendered a decree dissolving the
marriage,See footnote 14 from which these appeals followed.
In his initial brief on his appeal from the judgment of the
trial court, the defendant challenged: (1) the court's finding
that the parties contributed equally to the breakdown of the
marriage; (2) the court's award of periodic alimony and the related
life insurance order; and (3) the court's order requiring him to
pay both the plaintiff's and the child's attorney's fees. In their
initial brief on their joint appeal, the plaintiff and the child's
attorney claimed that the trial court had improperly: (1) failed to
find that the defendant was estopped from denying that the child
was the issue of the marriage; (2) failed to assert jurisdiction
over the custody of the child, thus depriving her of her right to
equal protection of the law; and (3) failed to consider the best
interest of the child in determining that it did not have
jurisdiction to determine the custody of the child. Following oral
argument in these appeals, we decided, sua sponte, to consider the
case en banc; see footnote 1; and to request supplemental briefs by
the parties and by the two amici curiae, the American Academy of
Matrimonial Lawyers, Connecticut Chapter (academy), and the
attorney general of Connecticut, on certain issues.See footnote 15
In his supplemental brief, the defendant claimed that: (1) the
plaintiff is not and cannot be considered a parent of the child;
(2) even if the court were to adopt an "equitable parent" doctrine,
the plaintiff would not qualify for that doctrine under the facts
of this case; and (3) under the law of the state, the child is not
a "child of the marriage" of the parties. In their supplemental
brief, the plaintiff and the child's attorney claimed that: (1) the
child is the issue of the parties' marriage because her birth
certificate establishes her legitimacy and her status as the
parties' child, and because of the legislative intent and policy
behind the statutes governing artificial insemination; General
Statutes §§ 45a-771 through 45a-779;See footnote 16 and (2) the court should
recognize the doctrine of the "equitable parent," and under that
doctrine, the court had jurisdiction over the custody of the
child.See footnote 17
It is useful to note first what this case does not involve.
It does not involve questions of how, if at all, to reconcile our
family relations statutes, as interpreted by this court, with
scientifically new methods of conception that were not available
when those statutes were enacted or when those interpretations were
issued. Thus, we need not, and do not, in this case confront
questions of parentage, under those statutes, resulting from such
recent scientific innovations as, for example, in vitro
fertilization using donated eggs that are then implanted in a
woman's womb; see, e.g., Office of Technology Assessment,
Infertility: Medical and Social Choices (1988) p. 255;
implantation into a woman's womb of a frozen embryo formed by the
sperm and egg of strangers to both the woman and her husband; see,
e.g., G. Kolata, "Clinics Selling Embryos Made For `Adoption,'"
N.Y. Times, November 23, 1997, p. 1; or other similar innovations
in which a woman who gives birth to a child is not the same woman
who produced the egg that was ultimately fertilized by a man's
sperm. See, e.g., 2 Royal Commission on New Reproductive
Technologies, Proceed With Care: Final Report of the Royal
Commission on New Reproductive Technologies (1993) pp. 662-63
(describing various "gestational" surrogacy arrangements).See footnote 18
Furthermore, although the facts of this case are certainly unusual,
neither the social arrangement by which the child was conceived and
delivered, surrogate motherhood, nor the method of conception,
artificial insemination, is new.
Although it has become widespread only in recent decades; H.
Ragone, Surrogate Motherhood: Conception in the Heart (1994) p. 194
n.2; surrogate motherhood is a practice with ancient roots.
Throughout history couples unable to have children because of the
woman's inability to conceive or carry a child to term have
arranged for impregnation of another woman with the husband's sperm
in order to produce a child for the couple to raise as their own.
S. Phillips, "Reproductive Ethics," 4 CQ Researcher 291, 301
(1994). The Bible's Book of Genesis, for instance, records three
instances of the practice. Genesis 16 (recounting surrogacy
arrangement among Abram, Sarai and Hagar); Genesis 30:1-24
(recounting surrogacy arrangements among Jacob, Rachel and Bilhah,
and among Jacob, Leah and Zilpah). Of course, as in the present
case, surrogate motherhood today generally involves implantation of
the sperm through artificial insemination instead of intercourse.
This practice, however, is also neither new nor scientifically
advanced.
Artificial insemination involving humans dates back at least
to the late 1770s, when the first authoritatively reported use of
the technique took place under the direction of an English
physician, Sir John Hunter. F. Poynter, "Hunter, Spallanzani, and
the History of Artificial Insemination," in Medicine, Science and
Culture (L. Stevenson & R. Multhauf, eds., 1968) pp. 97, 100. By
the 1890s, artificial insemination had become an established
medical specialty in numerous European cities; id., pp. 101-109;
and by the 1940s, it had developed into an established treatment
for fertility problems in the United States. Note, "The Socio-Legal Problems of Artificial Insemination," 28 Ind. L.J. 620,
620-22 (1953). Essentially, the technique is simple, merely
involving substitution of an instrument such as a syringe for the
traditional means of depositing semen into the woman's vagina. D.
Wikler & N. Wikler, "Turkey-baster Babies: The Demedicalization of
Artificial Insemination," 69 Milbank Q. 5, 8 (1991). It can be
performed without the assistance of trained medical professionals,
as it was in the present case.
We do not mean to imply that we are insensitive to the
interests of the child in this case, in particular, or to the
plight of couples who, faced with difficulties in conceiving a
child, are required to resort to such recent scientific
innovations, in general. Moreover, we do not seek to minimize the
difficulties of the legal questions that are presented by this
case. Our point here is solely that this case does not present
questions involving the meaning of our statutes in the factual
context of a scientifically new method of conception.See footnote 19
We next consider the trial court's denial of the defendant's
motion to open the evidence so as to admit the two probate decrees,
which conclusively established that the defendant is the father of
the child, and that the parental rights of the surrogate and her
former husband had been terminated. We conclude that the court
abused its discretion in denying the defendant's motion.
"Whether or not a trial court will permit further evidence to
be offered after the close of testimony in the case is a matter
resting within its discretion. State v. Levy, 103 Conn. 138, 145,
130 Atl. 96 [1925]; State v. Chapman, 103 Conn. 453, 479, 130 Atl.
899 [1925]; King v. Spencer, 115 Conn. 201, 203, 161 Atl. 103
[1932]; State v. Swift, 125 Conn. 399, 405, 6 Atl. (2d) 359 [1939].
Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689 [1940]. In
the ordinary situation where a trial court feels that, by
inadvertence or mistake, there has been a failure to introduce
available evidence upon a material issue in the case of such a
nature that in its absence there is serious danger of a miscarriage
of justice, it may properly permit that evidence to be introduced
at any time before the case has been decided." (Internal quotation
marks omitted.) State v. Holmquist, 173 Conn. 140, 152, 376 A.2d
1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193
(1977).
Deciding this contested marital dissolution case without
cognizance of the undisputed facts regarding the paternity of the
child and the termination of the potentially competing parental
rights, presented a serious danger of a miscarriage of justice.
First, those facts undermined the court's conclusion that it had no
jurisdiction to consider the custody of the child, because they
converted the case from one in which the presumed parents of the
child were not before the court, to a case in which at least one
conclusively established parent -- the defendant -- was before the
court. Second, relegating the parties to a subsequent habeas
corpus action, which the trial court contemplated, would have been
unsatisfactory because, even after the close of evidence but before
the court decided the case, it should have been apparent that a
determination in a subsequent habeas proceeding regarding the
custody of the child would have also required a determination
regarding her financial support, either in the habeas proceeding or
upon a return to the dissolution action. That determination, in
turn, would have necessitated the reworking of the financial orders
that the trial court entered in this action regarding the other but
inextricably linked financial issues. See Sunbury v. Sunbury, 210
Conn. 170, 175, 553 A.2d 612 (1989) (financial orders in
dissolution action involve mosaic of inextricably intertwined
issues). We therefore decide this case on the true state of the
facts, namely, that the defendant is the biological father of the
child, and that the parental rights of the surrogate and her
husband have been terminated.
We turn next to the following issues, which are raised by the
parties, the child and the amici: (1) the viability of the concept
of a "child of the marriage" under our dissolution of marriage
statute; General Statutes § 46b-56; see footnote 4; and (2) whether
that concept deprived the trial court of jurisdiction to adjudicate
the custody of the child under the facts of this case. We conclude
that, although the phrase "child of the marriage" is no longer
contained in § 46b-56, the concept that it embodies, as
authoritatively interpreted by decisions of this court, remains
implicit in our entire statutory scheme governing marital
dissolutions and retains viability by continuing to define who is
a parent for purposes of awarding custody in a dissolution action.
We also conclude, however, that the jurisdictional limitations that
the concept previously had imposed on the trial court operating
under that statute have been overtaken by subsequent statutory
changes. On the basis of these conclusions, we determine that the
trial court had jurisdiction to award custody of the child in this
case, as between the defendant, as the father of the child, and the
plaintiff, as an interested third party with a powerful, albeit
nonparental, claim to custody.
We preface this inquiry by reaffirming the established
proposition that, although the court has broad equitable remedial
powers in the area of marital dissolutions; Pasquariello v.
Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975) ("[t]he power
to act equitably is the keystone to the court's ability to fashion
relief in the infinite variety of circumstances which arise out of
the dissolution of a marriage"); our marital dissolution law is
essentially a creature of, and governed by, statute. "The Superior
Court's power to grant divorces and thereby dissolve marriages
comes from statutory authority, and from such jurisdiction over
divorce derives the court's jurisdiction to make and enforce orders
for care, custody and education of children. White v. White, 138
Conn. 1, 9, 81 A.2d 450 (1951); LaBella v. LaBella, 134 Conn. 312,
316, 57 A.2d 627 (1948) . . . ." (Citation omitted.) Kennedy v.
Kennedy, 177 Conn. 47, 49-50, 411 A.2d 25 (1979). Furthermore,
"Superior Court orders regarding custody of a minor child in an
action for dissolution of a marriage are governed by General
Statutes § 46b-56 . . . ." Hall v. Hall, 186 Conn. 118, 121, 439
A.2d 447 (1982). Thus, our task in the present case is not to
determine what the equities of the case may say about whether the
plaintiff should be considered as a parent of the child, or whether
it would be in the child's best interest for the plaintiff to be so
considered. To do so would be inconsistent with our established
jurisprudence identifying our statutes as the source of the court's
power to award custody of children in dissolution cases and
interpreting the meaning of parenthood under those statutes. Our
task, instead, is to determine, as a matter of statutory
interpretation, the relationship between the plaintiff and the
child for purposes of the court's power to award custody under
§ 46b-56.
"The process of statutory interpretation involves a reasoned
search for the intention of the legislature. Frillici v. Westport,
231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek
to determine, in a reasoned manner, the meaning of the statutory
language as applied to the facts of this case, including the
question of whether the language actually does apply. In seeking
to determine that meaning, we look to the words of the statute
itself, to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation and
common law principles governing the same general subject matter. .
. . Id.; Carpenteri-Waddington, Inc. v. Commissioner of Revenue
Services, 231 Conn. 355, 362, 650 A.2d 147 (1994); United
Illuminating Co. v. Groppo, 220 Conn. 749, 755-56, 601 A.2d 1005
(1992)." (Internal quotation marks omitted.) United Illuminating
Co. v. New Haven, 240 Conn. 422, 431-32, 692 A.2d 742 (1997).
We begin with the language of § 46b-56.See footnote 20 It deals with two
separate but related situations. The first, and broader, situation
is invoked by the first clause of the first sentence of § 46b-56
(a), which provides in relevant part: "In any controversy before
the Superior Court as to the custody or care of minor children . .
. ." That first clause, unlike the clause that follows it, is not
addressed necessarily to the court's dissolution jurisdiction. It
grants the court power in "any controversy," not limited to a
dissolution action, to determine the custody or care of minor
children. The first clause, therefore, grants the court power to
determine custody in, for example, a habeas corpus case involving
custody of a minor child. The second clause of the first sentence
of § 46b-56 (a), however, is more narrow and specific and provides
in relevant part: "and at any time after the return day of any
complaint under section 46b-45 . . . ." General Statutes § 46b-45
governs the filing of complaints for marital dissolution, annulment
or legal separation.See footnote 21 Thus, the second clause of the first
sentence of § 46b-56 (a) grants the court power to determine
custody in a dissolution case.
In either situation, however, the language of the section
differentiates between parents of a child and third parties. The
second sentence of subsection (a) of § 46b-56 provides that
"[s]ubject to the provisions of section 46b-56a,See footnote 22 the court may
assign the custody of any child to the parents jointly, to either
parent or to a third party." Subsection (a) of § 46b-56 further
provides that "[t]he court may also make any order granting the
right of visitation of any child to a third party, including but
not limited to, grandparents." Furthermore, subsection (c) of
§ 46b-56 requires the court, in making a support award for "a
child," to consider "the respective abilities of the parents to
provide support," and to "take into consideration all the factors
enumerated in section 46b-84." General Statutes § 46b-84, which is
the statutory provision specifically governing the award of support
for a minor child in a dissolution, annulment or legal separation
case, uses the term "child" and the phrase "child of the marriage"
interchangeably.See footnote 23 The language of § 46b-56, therefore, by itself
and by its specific connection with § 46b-84, strongly suggests
that in the marital dissolution context a "child" means a child of
the marriage.
This suggestion is buttressed by reference to other, closely
related statutes in this area of the law. General Statutes § 46b-60,See footnote 24 which governs the court's power in annulments, provides that
"the Superior Court may make such order regarding any child of the
marriage and concerning alimony as it might make in an action for
dissolution of marriage. The issue of any void or voidable marriage
shall be deemed legitimate. Any child born before, on or after
October 1, 1976, whose birth occurred prior to the marriage of his
parents shall be deemed a child of the marriage." Thus, like
§ 46b-84, § 46b-60 uses the term "child" and the phrase "child of
the marriage" interchangeably. It is highly unlikely that the
legislature, in referring to the powers of the court over minor
children, intended those powers to be different depending on
whether the complaint seeks a dissolution or annulment of the
marriage. We can perceive no rationale for such a distinction, and
to read our statutes to create one would be inconsistent with the
fundamental principle of statutory construction that we read
related statutes to form a consistent, rational whole, rather than
to create irrational distinctions. See, e.g., In re Valerie D.,
223 Conn. 492, 524, 613 A.2d 748 (1992) ("`[s]tatutes are to be
interpreted with regard to other relevant statutes because the
legislature is presumed to have created a consistent body of
law'"); Powers v. Ulichny, 185 Conn. 145, 149, 440 A.2d 885 (1981)
("[w]e make every effort to construe a statutory scheme as a
consistent whole"). Similarly, General Statutes § 46b-45a,See footnote 25 which
governs the situation in which a wife is pregnant during
dissolution or annulment proceedings, provides that the "parties
may in their pleadings allege and answer that the child born of the
pregnancy will or will not be issue of the marriage."
Furthermore, the marital relations statutes consistently draw
a linguistic distinction between a "parent" of a child and an
interested "third party" with respect to custody of the child.
See, e.g., General Statutes § 46b-56 (a)See footnote 26 (court may assign
custody of child "to the parents jointly, to either parent or to a
third party"); General Statutes § 46b-56bSee footnote 27 (statutory presumption
in dispute "involving a parent and a nonparent"); General Statutes
§ 46b-57See footnote 28 (in controversy as to custody of minor children, if
there is "any minor child of either or both parties" court "may
allow any interested third party or parties to intervene"); General
Statutes § 46b-59See footnote 29 (grant of visitation rights with minor child
under section "shall not be deemed to have created parental rights
in the person or persons to whom such visitation rights are
granted"). This consistent distinction between the rights of
parents and third parties further supports our conclusion, drawn
from the language of our marital statutory scheme, that the concept
of a child of the marriage is implicit in § 46b-56.
The legislative history of § 46b-56 also supports this
conclusion. That history indicates that the concept of a child of
the marriage has long been embedded in that section, and has been
expressed both explicitly, by language such as "children of the
marriage," and implicitly, by language such as "children" and
"minor children."
Section 46b-56 traces its genealogy to 1837, when the
legislature provided for the first timeSee footnote 30 that, incident to a
divorce, the Superior Court could "make such order, as between the
parties, for the custody, care and education of the children of the
marriage, as such court may deem necessary and proper . . . ."
General Statutes (1839) tit. XXIII, § 1 (1837) p. 187. The
reference to "children of the marriage" remained in the statute
providing for the granting of divorces through the statutory
revisions of 1849 and 1866. See General Statutes (1849 Rev.) tit.
VII, c. II, § 15; General Statutes (1866 Rev.) tit. 13, c. III,
§ 38.
In the revision of 1875, the statutes used the phrases "the
children" and "minor child of such marriage" interchangeably. In
the section providing for awarding custody incident to a divorce,
the statute dropped the phrase "of the marriage," and provided that
the court may "make any proper order as to custody, care, and
education of the children"; General Statutes (1875 Rev.) tit. 14,
c. III, § 7; and in the section regarding the support of minor
children the statute provided that "the parents of a minor child of
such marriage, in need of maintenance, shall maintain it according
to their respective abilities . . . ." General Statutes (1875
Rev.) tit. 14, c. III, § 9. There is no indication, however, in
the extensive preface to that comprehensive statutory revision that
any change in substance was intended by the elimination from one
section and the retention in the other section of the phrase "of
the marriage," nor can we perceive any reason for such a difference
in meaning between the two sections.
In 1883, the legislature enacted Public Acts 1883, c. XXVIII,
entitled "An Act concerning the Custody of Children," which
provided that in any controversy in the court "between husband and
wife as to the custody of minor children of the marriage, the court
shall have power to assign the custody of such children to either
parent according to its best judgment upon the facts of the case,
and upon such conditions and limitations as it shall deem proper."
The legislature amended the act in 1885, providing additional
authority in the court to make such awards "when such court is not
actually in session . . . ." Public Acts 1885, c. XCIX, § 1. This
provision, which contained the language "minor children of the
marriage," was carried forward into the 1888 statutory revision, as
was the language of the 1875 revision providing, in divorce cases,
for orders "as to custody, care, and education of the children . .
. ." General Statutes (1875 Rev.) tit. 14, c. III, § 7; General
Statutes (1888 Rev.) §§ 2809, 2811. The interchangeable use of the
phrases "of the children" and "minor children of the marriage"
remained in the statutes through the general statutory revisions of
1902, 1918, 1930, 1949 and 1958. See General Statutes (1902 Rev.)
§§ 4558, 4560, 4561; General Statutes (1918 Rev.) §§ 5289, 5291,
5292; General Statutes (1930 Rev.) §§ 5184, 5186, 5187; General
Statutes (1949 Rev.) §§ 7337, 7339, 7340; General Statutes (Rev. to
1958) §§ 46-23, 46-24, 46-26. Indeed, it continued until the eve
of the extensive amendments to our divorce laws effected by the
legislature in 1973. See General Statutes (Rev. to 1972) §§ 46-23,
46-24, 46-26.See footnote 31
In 1973, by No. 73-373 of the 1973 Public Acts (P.A. 73-373),
the legislature effected an historic revision of our marital
dissolution statutes.See footnote 32 That legislation introduced certain new
concepts to our family law, such as the irretrievable breakdown of
the marriage as a ground for dissolution. See General Statutes
(Rev. to 1975) § 46-48, now § 46b-51. Throughout that legislation,
however, the legislature continued to use various terms -- such as
"minor children of the marriage," "minor children," and "minor
children of the parties" -- interchangeably, without any
indication, either in the language of the legislation or in its
legislative history that different meanings were intended by the
slight linguistic differences.See footnote 33 Thus, the legislature continued
the prior legislative practice of referring to children, in the
context of a marital dissolution case, by terms that both
explicitly and implicitly referred to the concept of a child of the
marriage. These different linguistic formulations remain scattered
throughout our current marital dissolution statutes. See, e.g.,
General Statutes §§ 46b-51 (a), 46b-53 (a), 46b-54 (a), 46b-56 (a),
46b-57, 46b-60, 46b-61, 46b-62, 46b-66 and 46b-84.
We ordinarily do not infer a legislative intent to change
longstanding and fundamental legislative policies without a clear
indication of such an intent. See, e.g., State v. Cobb, 234 Conn.
735, 750, 663 A.2d 948 (1995). There is no indication, however,
that in the context of a marital dissolution case the legislature
meant to eliminate from those statutes the longstanding concept of
a child of the marriage. Indeed, the legislative history that does
touch on this issue indicates that the legislature assumed that the
legislation continued to embody the notion of children of the
marriage. See, e.g., 16 S. Proc., Pt. 3, 1973 Sess., p. 1408,
remarks of Senator George C. Guidera ("[t]he bill also provides
that the court may, not shall, appoint counsel for the children
[of] the marriage"); 16 H.R. Proc., Pt. 4, 1973 Sess., p. 1466,
remarks of Representative James F. Bingham ("counsel may be
appointed to protect the interests of the children of the
marriage"); id., p. 1479, remarks of Representative Alan H. Nevas
("this bill . . . [is] going to provide dignity for the parties
involved and it's going to provide supportive measures for the
children of these marriages").
Although the statutes have never explicitly defined the
contours of the concept of a "child of the marriage," our cases
have interpreted that concept in a consistent manner, both before
and after the historic 1973 revision. A review of that case law,
read in connection with certain other statutory developments, leads
us to conclude that the meaning of that concept, in the context of
a marital dissolution case, is limited to a child conceived by both
parties, a child adopted by both parties, a child born to the wife
and adopted by the husband, a child conceived by the husband and
adopted by the wife, and a child born to the wife and conceived
through artificial insemination by a donor pursuant to §§ 45a-771
through 45a-779. See footnote 16. Those sources also lead us to
conclude that, although initially the concept of a child of the
marriage imposed jurisdictional limitations on the power of the
court to award custody of a minor child who did not fit within that
concept, those jurisdictional limitations have been overtaken by
statutory amendments that give a dissolution court the power to
award custody of such a child to an interested third party. The
concept of a child of the marriage, as established by our statutory
and interpretive jurisprudence, however, continues to define who is
a parent of the child for purposes of the ultimate custody
determination.
In LaBella v. LaBella, supra, 134 Conn. 312, the husband and
wife were childless, and had discussed adoption. While on a
business trip, the husband wrote to the wife that he had found a
baby that they could adopt. The wife told him to bring the baby
home, which he did. The next year, the husband disclosed to the
wife that the child was, in fact, his child -- the issue of an
adulterous relationship. Id., 314. In the subsequent divorce
action between them, this court held that: (1) divorce is a
"creature of statute"; id., 316; (2) the applicable divorce
statutes "refer to children of the marriage in terms or by
implication"; id.; and (3) the child "is not a child of this
marriage." Id. Thus, we concluded that, under the statutory scheme
as it then existed, the Superior Court did not have jurisdiction in
the divorce action to award custody of the minor child. Id.,
316-17.See footnote 34
In Morrow v. Morrow, 165 Conn. 665, 345 A.2d 561 (1974),See footnote 35 the
wife and husband had been married in Scotland in 1964. At the time
of the marriage, the wife had a one year old child born out of
wedlock. Although the husband had expressed interest in adopting
that child, the parties decided that they could not afford an
adoption. Instead, in 1965, they followed a Scottish procedure by
which the husband, in the wife's presence, swore before a sheriff
that he was the child's father, and the child's birth records were
then changed to indicate that fact. Id., 667. Thereafter, the
husband treated the child as his own. The divorce action, in the
Superior Court, took place five years later, in 1970. The trial
court granted custody of the child to the husband. Id.
On appeal, this court reversed the judgment of the trial court
and concluded that the trial court "lacked jurisdiction to award
custody of [the child] to the [husband]." Id., 670. The court
stated that the "trial court had no jurisdiction to award custody
of [the child] to the [husband] if she is not his child by
paternity or adoption." Id., 668. In addition to LaBella, the
court relied on General Statutes (Rev. to 1972) § 46-26a, now
§ 46b-58, which "expanded the jurisdiction of the Superior Court,
by providing that `[t]he authority of the [S]uperior [C]ourt to
make and enforce orders and decrees as to . . . custody . . . is
extended to children adopted by both parties and any natural child
of one of the parties who has been adopted by the other.'" Morrow
v. Morrow, supra, 165 Conn. 668-69. The court stated: "Unless [the
child] is deemed by law to be a child of the marriage of the
[husband] and the [wife], the Superior Court was without
jurisdiction over her person." Id., 669.See footnote 36 The court determined
that "[o]n the undisputed facts of this case and the applicable
law, we conclude that [the child] is not the legitimate child of
the [husband] and that the court lacked jurisdiction to award
custody of [the child] to the [husband]." Id., 670.
Remkiewicz v. Remkiewicz, 180 Conn. 114, 429 A.2d 833 (1980),
involved a marital dissolution action between a wife, who had had
a minor child by a former marriage, and her husband. During their
marriage, the husband had filed an affidavit of parentage of the
child, changing her birth certificate to reflect his paternity and
changing her last name to his. Id., 116. During the marriage, the
child regarded the husband as her father, and he treated her as his
child, publicly acknowledging her as such and claiming her as a tax
exemption. Id. The attorney general became a party to the
dissolution action because the wife had been receiving public
assistance, and moved for an order of support against the husband.
Id., 115. The trial court held that it had no jurisdiction to issue
such an order because the husband was "neither the natural nor
adoptive parent of [the child] . . . ." Id., 116.
This court affirmed. We held that the trial court had no
authority "to issue [an order of support] against a husband who was
neither the biological nor adoptive parent of the child for whom
support was sought." Id., 116-17. We stated that "the power of
the Superior Court to dissolve a marriage emanates wholly from
statute," and that its "further authority to issue any order as to
the custody, care and education of the minor children of the
parties, as an incident of the dissolution action, is also governed
by statute." Id., 117. We then noted that authority "exists,
under General Statutes [§ 46b-58] . . . to order support for minor
children, including children adopted by both spouses and natural
children of one spouse who are adopted by the other." Id. The
court also stated that the duty of support "is one imposed on
parents," and that the husband was not the child's "parent because
he was not her biological father, he was not her father by
adoption, nor was he adjudged to be her father by" any of the
statutory paternity provisions. Id. Finally, the court confronted
the state's public policy argument based on the husband's written
acknowledgment of paternity. The court stated: "In this case,
however, public policy cuts two ways. The adoption statutes . . .
express a legislative intent that no person shall acquire parental
status unless certain formalities are observed. A parent has
rights as well as duties. If a stepfather could acquire parental
rights through the simple expedient of changing his stepchild's
birth certificate, all sorts of mischief could result." Id., 120.
These cases stand for several propositions. First, the
court's power to adjudicate custody derives from statute, and
cannot be expanded by equitable concerns. Second, the concept of
"child of the marriage" defines who is a parent for purposes of
awarding custody in a dissolution action. The child of the
marriage and the parent of the child are two sides of the same
coin. Third, that concept derives from interpretations of the
relevant statutes and not from common-law adjudication by this
court. Thus, it confines the meaning of parentage to a child
conceived by both of the parties,See footnote 37 or to a child who either had
been adopted by both parties or was a natural child of one party
who had been adopted by the other.See footnote 38 Fourth, under these cases, the
concept of "child of the marriage," and its corresponding
definition of parentage, imposed jurisdictional limitations on the
trial court's power to enter custody orders in dissolution cases.
If the child was not a "child of the marriage" -- that is, if both
parties were not parents of the child, within the meaning of our
statutes -- the court had no jurisdiction to render such orders.
The first three of these propositions remain part of our
dissolution jurisprudence. In the absence of some powerful reason
to overrule those precedents and a principled doctrine with which
to replace them -- particularly given that they have long been in
existence without legislative disapproval -- we would not be
justified in doing so. See Conway v. Wilton, 238 Conn. 653, 682-83,
680 A.2d 242 (1996) (Peters, C. J., dissenting) ("[o]nce an
appropriate interval to permit legislative reconsideration has
passed without corrective legislative action, the inference of
legislative acquiescence places a significant jurisprudential
limitation on our own authority to reconsider the merits of our
earlier decision . . . especially . . . when the precedent involved
concerns the interpretation or construction of a statute" [citation
omitted; internal quotation marks omitted]).
The fourth proposition, however, namely, that the definition
of parenthood imposes a jurisdictional limitation on a dissolution
court with regard to custody determinations, stands on a different
footing. That proposition has been overtaken by legislation
enacted as part of the 1973 revision of the dissolution statutes.
Prior to P.A. 73-373, although our dissolution statutes gave
the court the jurisdiction to award to a third party visitation
rights regarding a child of the marriage; General Statutes (Rev. to
1972) § 46-23;See footnote 39 they limited the court's jurisdiction to award
custody of such a child to the parents of the child. General
Statutes (Rev. to 1972) § 46-24;See footnote 40 Michaud v. Wawruck, 209 Conn.
407, 413, 551 A.2d 738 (1988) ("[o]ur statutes recognize that
visitation encompasses considerations that differ from those that
govern custody"). These cases reflected that limitation.See footnote 41
Section 15 of P.A. 73-373, however, eliminated that limitation
by expanding the Superior Court's jurisdiction to include the power
to award custody of a child of the marriage to a third party. As
codified in General Statutes (Rev. to 1983) § 46b-56, after having
been amended by No. 80-29 of the 1980 Public ActsSee footnote 42 and No. 81-402
of the 1981 Public Acts,See footnote 43 that legislation provides in relevant
part: "Subject to the provisions of section 46b-56a, the court may
assign the custody of any child to the parents jointly, to either
parent or to a third party, according to its best judgment upon the
facts of the case and subject to such conditions and limitations as
it deems equitable. . . ." (Emphasis added.)
The legislative history of P.A. 73-373 supports the conclusion
that this language was intended to expand the court's jurisdiction
in regard to custody orders in a dissolution case. See 16 H.R.
Proc., supra, p. 1464, remarks of Representative Bingham ("[t]he
only change [made by] the bill . . . in the area of custody is that
the court is given the right to assign custody to someone other
than a parent if it is in the best interests of the children").
In Manter v. Manter, 185 Conn. 502, 441 A.2d 146 (1981), we
considered the question of third party intervention to seek custody
of a child in a dissolution case pursuant to § 46b-57.See footnote 44 That
section procedurally supplements the third party provision of
§ 46b-56, by authorizing, although not requiring, the formal
intervention in a dissolution case of an interested third party
whose interest may not already be before the court. Cappetta v.
Cappetta, 196 Conn. 10, 12-15, 490 A.2d 996 (1985). Observing that
the court's paramount consideration in a custody matter is the
child's welfare; Manter v. Manter, supra, 507; we stated that the
court may employ a flexible test in determining the varieties of
interest that would authorize such an intervention, that those
interests would not necessarily be confined to the traditional
nuclear family model, and that they could include "such
nontraditional parties as stepparents where the child's welfare
dictated that result." Id., 508. Similarly, we have read Manter
as indicating that "the [intervening] movant's status as a former
adoptive parent would not otherwise have been a disqualification
automatically barring him from custody in an appropriate case."
Cappetta v. Cappetta, supra, 14. We have also recognized that, for
purposes of third party custody and visitation determinations,
"[t]raditional models of the nuclear family have come, in recent
years, to be replaced by various configurations of parents,
stepparents, adoptive parents and grandparents," and we should not
"assume that the welfare of children is best served by a narrow
definition of those whom we permit to continue to manifest their
deep concern for a child's growth and development." Michaud v.
Wawruck, supra, 209 Conn. 415.
The foregoing analysis demonstrates that: (1) the plaintiff is
not a parent of the child within the well established definition of
that term in our marital dissolution law; (2) she is, however, a
third party who comes well within the ambit of § 46b-56 for
consideration as a third party claimant to custody of the child;
and (3) there is no jurisdictional barrier to that consideration by
the trial court. The trial court's conclusion, therefore, that it
had no jurisdiction to consider the custody of the child was
flawed, and the case must be remanded to that court for full
consideration of the merits of the custody dispute, under the
appropriate standards.
Before addressing those standards, however, we briefly and
explicitly address certain of the contentions of the parties, the
amici, and the concurring and dissenting opinion. First, implicit
in our analysis is that we reject the "equitable parent"
doctrine.See footnote 45 Using purely equitable concerns to reformulate the
definition of parentage under our dissolution statutes would be
inconsistent with our entire jurisprudence in the area of marital
dissolution, which, as discussed, locates the source of judicial
power in those statutes, and not in the court's common-law powers
of equity. Although, as we have stated, the court has broad
equitable powers under those statutes; see Pasquariello v.
Pasquariello, supra, 168 Conn. 585; it is clear that those powers
concern the court's authority to fashion appropriate remedies, and
they have never been construed to permit the court to define
parentage. Indeed, in both LaBella and Morrow, the unsuccessful
adult who sought custody would have qualified under the most
prominent formulation of that doctrine; see footnote 45; but those
claims to custody were rejected by this court as a matter of
statutory interpretation. Furthermore, acceptance of the equitable
parent doctrine would also be inconsistent with our statutory
scheme for adoption. See General Statutes §§ 45a-706 through 45a-765. A court is not at liberty to bestow parental status
independent of that scheme. Remkiewicz v. Remkiewicz, supra, 180
Conn. 120 ("adoption statutes . . . express a legislative intent
that no person shall acquire parental status unless certain
formalities are observed").See footnote 46 Finally, as we explain further in
part IV of this opinion, where, as in this case, there is a custody
disagreement between a parent and an interested third party with a
powerful claim to custody, our statutes afford sufficient
flexibility and discretion to the trial court to recognize that
claim, without the necessity of creating the legal fiction of an
"equitable parent."
We also reject the claim of the plaintiff and the attorney for
the child, which the academy joins; see footnote 17; that the
defendant is estopped from denying that the child is the issue of
the marriage. In Morrow v. Morrow, supra, 165 Conn. 669, we
rejected, as not supported by the record, the trial court's
determination that the husband had been estopped from recanting his
declaration of parentage before the Scottish sheriff. In doing so,
we noted that estoppel requires proof of two facts: (1) misleading
conduct by one party; and (2) detrimental reliance thereon by the
other party. Id. Likewise, the record in the present case does not
support a finding of estoppel. Despite the plaintiff's claim in
her brief that she did not pursue an adoption of the child because
of the defendant's assurance to her that she was the child's
mother, there is no such evidence in this record from which such an
inference could be drawn.See footnote 47
The plaintiff's claim that the trial court's conclusion that
it lacked jurisdiction deprived her of equal protection of the laws
must fall because of our conclusion that the trial court did have
jurisdiction to adjudicate the child's custody. On remand, the
trial court will be required to exercise its custody jurisdiction.
The plaintiff's claim that the trial court was required by the
child's best interests to adjudicate her custody is simply contrary
to basic jurisprudential notions. The court must first have
jurisdiction in regard to the custody determination before deciding
where the child's best interests require custody to be located. In
any event, on remand, the child's best interests will be the
critical factor for the court's consideration in that custody
determination.
We also reject the claim of the plaintiff and the child's
attorney that the child's birth certificate conclusively
established that the plaintiff is her mother. One does not gain
parental status by virtue of false information on a birth
certificate. See Remkiewicz v. Remkiewicz, supra, 180 Conn. 120
("[i]f a stepfather could acquire parental rights through the
simple expedient of changing his stepchild's birth certificate, all
sorts of mischief could result").
Finally, we reject the reliance of the plaintiff and the
child's attorney on §§ 45a-771 through 45a-779.See footnote 48 Those statutes
govern the rights and status of children born through, and husbands
and wives who consent to, the process of "heterologous artificial
insemination, or artificial insemination with the semen of a
donor," referred to as "A.I.D." General Statutes § 45a-772. They
provide that "children born as a result of A.I.D. shall be deemed
to acquire, in all respects, the status of a naturally conceived
legitimate child of the husband and wife who consented to and
requested the use of A.I.D." General Statutes § 45a-774.
Recognizing that the plaintiff in this case does not come
within the terms of these statutes, the plaintiff and the child's
attorney argue that the policy and legislative intent behind them
support the plaintiff's claim of parentage. We disagree. These
statutes are intended to codify, with respect to a child conceived
as a result of A.I.D., "the public policy of this state . . . that
every child born to a married woman during wedlock is legitimate."
General Statutes § 45a-771 (a). Thus, to the extent that these
statutes could be considered as having a public policy effect
beyond their terms, that policy would have legitimized the child as
the child of the surrogate and her then husband; it could not have
created parentage in the plaintiff.
We summarize the main points of the dissenting portion of the
concurring and dissenting opinion in order to respond to it.
First, the concurring and dissenting opinion agrees that, as a
matter of statutory interpretation, the concept of "child of the
marriage" is incorporated into § 46b-56 (a). The analysis of that
opinion diverges from ours, however, starting with the proposition
that, historically, the concept of the "child of the marriage," as
incorporated in § 46b-56 (a), was "to distinguish between
illegitimate and legitimate offspring." That opinion then asserts
that "[c]hildren who otherwise might have been deemed illegitimate
were presumed at common law to be `children of the marriage' if
they were born to the wife during the course of the marriage or, if
born prior to the marriage, they were adopted by the nonbiological
parent." (Emphasis added.) For these propositions, the opinion
cites several authorities, principally Morrow v. Morrow, supra, 165
Conn. 668-69, 84 A.L.R.4th 655, 679-84 (1991), note, "Presumption
of Legitimacy of a Child Born in Wedlock," 33 Harv. L. Rev. 306
(1919-20), and J. Ayer, Jr., "Legitimacy and Marriage," 16 Harv. L.
Rev. 22, 23 (1902-1903).
The concurring and dissenting opinion then derives from the
history of the dissolution statutes a legislative recognition "that
there are certain factual circumstances under which a child who is
the biological or adopted child of only one of the parties to the
marriage is nonetheless considered a `child of the marriage' for
the purposes of determining . . . custody." That opinion then
asserts that the "historical significance" of the concept of the
child of the marriage "obliges the court to expand the term `child
of the marriage' beyond the gatekeeping function assigned to it by
the majority." The concurring and dissenting opinion concludes
that, although § 46b-56 continues to require that the subject of a
custody dispute be a "child of the marriage," it "no longer
requires that in every case the child be the biological or the
adopted child of both parties to the marriage."
The concurring and dissenting opinion then attempts to explain
away the conflict between this conclusion and Remkiewicz v.
Remkiewicz, supra, 180 Conn. 114, Morrow v. Morrow, supra, 165
Conn. 665, and LaBella v. LaBella, supra, 134 Conn. 312, by
distinguishing those cases on the basis that their holdings "are
inapposite to the facts of this case, in which the parties were
married to raise this child . . . ."See footnote 49 (Emphasis added.) In this
connection, the concurring and dissenting opinion also asserts that
"[b]oth the plaintiff and the defendant intended from the time the
child was conceived that they should be the only mother and father
the child ever knew." (Emphasis added.) Finally, the opinion
concludes that the child should be considered a child of the
marriage because, "[a]lthough the parties failed to finalize their
relationship with the child through the proper probate procedures,"
it is clear that they intended that the plaintiff should have all
the rights and responsibilities of a mother.
The reasoning of the concurring and dissenting opinion is
flawed. First, there is little evidence for its historical
assertion that the purpose of the concept of the child of the
marriage, as used in § 46b-56 (a), was to distinguish between
legitimate and illegitimate children.
For example, the reference to Morrow is unavailing in this
regard. Although Morrow did, in quoting from LaBella v. LaBella,
supra, 134 Conn. 316, refer to the fact that the mother is the
guardian of the person "`of an illegitimate child'"; Morrow v.
Morrow, supra, 165 Conn. 668; that hardly establishes the
proposition that, when the legislature started using the term
"child of the marriage" in 1837, its purpose was to distinguish
between legitimate and illegitimate children. Moreover, the
reference in the concurring and dissenting opinion to Morrow v.
Morrow, supra, 669, to support its assertion that "[c]hildren who
otherwise might have been deemed illegitimate were presumed at
common law to be `children of the marriage' . . . if born prior to
the marriage, they were adopted by the nonbiological parent," is
erroneous. (Emphasis added.) In fact, in discussing children born
prior to the marriage and subsequently adopted, the court referred,
not to any common-law principle regarding legitimacy, but to then
General Statutes § 46-26a. The court noted that "[o]ur present
statutes have expanded the jurisdiction of the Superior Court, by
providing that `[t]he authority of the superior court to make and
enforce orders and decrees as to . . . custody . . . is extended to
children adopted by both parties and any natural child of one of
the parties who has been adopted by the other.' General Statutes
§ 46-26a." Morrow v. Morrow, supra, 668-69.
If anything, this reference reinforces our view that the
concept of parentage under our dissolution statutes has developed
legislatively, rather than by a process of case-by-case judicial
lawmaking based on equitable principles. Indeed, the concurring
and dissenting opinion cannot cite one case, because there is none,
in our more than 160 years of statutory dissolution jurisprudence,
in which the court, rather than the legislature, has expanded the
definition of a child of the marriage. Additionally, whenever such
a judicial expansion has been sought, the court has reiterated the
principle that our power over custody matters derives from the
statutes.
Moreover, the other authorities that the concurring and
dissenting opinion marshals for its historical assertion do not
strongly support it. Although the two Harvard Law Review articles
cited in that opinion discuss the law of legitimacy of children in
great detail, neither of them refers in any way to the concept of
a "child of the marriage."See footnote 50 See note, supra, 33 Harv. L. Rev. 306;
J. Ayer, Jr., supra, 16 Harv. L. Rev. 22.
Second, even if we were to accept the assertion that,
originally, the legislative purpose of the concept of the child of
the marriage was to differentiate between legitimate and
illegitimate children, that does not mean, as the concurring and
dissenting opinion suggests, that we are free to jettison what has
become its established meaning and jurisprudence, and to supply a
new meaning contrary to that jurisprudence. As we have indicated,
the history of our dissolution statutes makes clear that, despite
what might be the historical origins of the concept of a child of
the marriage, its statutory function for many decades has been to
define who is a parent for purposes of determining custody in a
dissolution action. That history also establishes that our power
to adjudicate custody derives from statute and not from
considerations of equity, and that, despite the suggestion of the
concurring and dissenting opinion to the contrary, the meaning of
the concept of a child of the marriage has been the result of
statutory amendment and interpretation and not common-law
adjudication unfettered by statutory interpretation. Indeed, it
was not until 1976, when the legislature enacted what is now the
last sentence of § 46b-60,See footnote 51 that a child born to an unmarried
couple who later married was "deemed a child of the marriage."
Thus, we disagree with the contention in the concurring and
dissenting opinion that, despite this history, we are "obliged" --
the opinion does not explain the source of this obligation -- to
expand the concept beyond its established meaning.
Third, the factual underpinnings of the conclusion in the
concurring and dissenting opinion that the child in this case is a
"child of the marriage" is not supported by the record. That
opinion brings this child within that language by its factual
assertions that "the parties were married to raise this child," and
that "the [parties] intended from the time the child was conceived
that they should be the only mother and father the child ever
knew." There are no such findings by the trial court, however, and
neither the evidence nor the court's findings necessarily imply
these facts. The court found that, although both parties desired
to have children, "the defendant clearly expressed his
determination to have a child, with or without the plaintiff's
cooperation." (Emphasis added.) Consistent with that
determination, the court also found that it was the defendant who
sought the surrogate through the newspapers. Furthermore, it is
undisputed that the parties' marriage did not take place until
approximately four months after the child was conceived. Thus, it
cannot be definitively said on the basis of this record that the
purpose of this marriage was to raise this child, or that when the
child was conceived both the plaintiff and the defendant intended
that they would both be the only parents that the child would ever
know. Although those would have been permissible inferences, had
the court drawn them, they are not necessary inferences from either
the findings or the undisputed evidence. We simply do not know
what specifically was in the defendant's mind, regarding marriage
to the plaintiff, when the artificial insemination took place.
Indeed, the reliance of the concurring and dissenting opinion
on these assertions -- that the purpose of this marriage was to
raise this child and that, therefore, this is a "child of the
marriage" -- demonstrates the fragility of the reasoning of that
opinion. Had the parties been married and without children for two
or three years, and then decided that they wanted a child and went
through the same surrogacy arrangement and child rearing, under the
rationale of the concurring and dissenting opinion it could not be
said that the parties were married in order to raise the child.
Presumably, therefore, under that scenario the child would not be
a "child of the marriage." It is difficult to see, however, why in
principle that child would be any more or less a child of the
marriage than the child in this case. This inconsistency
demonstrates that the concurring and dissenting opinion really
relies on its own unarticulated version of the equitable parent
doctrine, despite its disavowal of that doctrine.
Fourth, the concurring and dissenting opinion passes over the
pertinence of our adoption statutes with only a passing reference
to the parties' "fail[ure] to finalize their relationship with the
child through the proper probate procedures." Our adoption
statutes embody significant substantive and procedural requirements
that the legislature has mandated must be met before one may become
an adoptive parent. See General Statutes §§ 45a-706 through 45a-765. These requirements rest on important public policies for the
protection of all concerned -- the child, the biological parents
and the adoptive parents. The concurring and dissenting opinion,
through what may be a laudable desire to supply a "legal" mother
for this child for purposes of § 46b-56, ignores those statutes and
the public policies on which they rest, and in effect would
validate a kind of de facto adoption in this case. We decline to
do so.
At bottom, despite its disavowal of the equitable parent
doctrine, the concurring and dissenting opinion is most plausibly
read as an unarticulated application of that doctrine. By focusing
on the admittedly sympathetic facts of this particular marriage and
this particular child, while simply sweeping away our established
law and the history of dissolution and custody matters, the
concurring and dissenting opinion would transform the legislative
concept of the child of the marriage into the judicial concept of
the equitable parent. For the reasons articulated elsewhere in
this opinion, we decline to follow that path.
Having concluded that the trial court had jurisdiction to
adjudicate the custody of the child as between the defendant, as
the child's father, and the plaintiff, as a third party asserting
a claim to custody, giving due regard to the statutory presumption
afforded by § 46b-56b, we turn to a discussion of the potential
effect of that statutory presumption in this case, in order to give
some guidance to the trial court on remand. Section 46b-56b
provides: "In any dispute as to the custody of a minor child
involving a parent and a nonparent, there shall be a presumption
that it is in the best interest of the child to be in the custody
of the parent, which presumption may be rebutted by showing that it
would be detrimental to the child to permit the parent to have
custody."
"This statute was enacted to counteract the holding of
McGaffin v. Roberts, 193 Conn. 393, 479 A.2d 176 (1984), cert.
denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985),
which held that [General Statutes] § 45-43 (now § 45a-606)See footnote 52 did
not create a presumption that a surviving parent is entitled to
preference in a custody dispute." Bristol v. Brundage, 24 Conn.
App. 402, 405, 589 A.2d 1 (1991); see also Hao Thi Popp v. Lucas,
182 Conn. 545, 551, 438 A.2d 755 (1980) (in custody contest between
parent and third party, constitutional right to family integrity
requires presumption in favor of parent).
"The presumption, which is one of public policy, places upon
the nonparent the burden of proving sufficient facts to put the
presumed fact [that it is in the best interest of the child to be
in the custody of the parent] into issue." (Internal quotation
marks omitted.) Garrett's Appeal from Probate, 44 Conn. Sup. 169,
183, 677 A.2d 1000 (1994), aff'd, 237 Conn. 233, 676 A.2d 394
(1996). "The presumption . . . does not shift the burden of proof
in a custody dispute between a parent and a nonparent, but makes
that burden easier [for the parent] to sustain because it gives the
parent an initial advantage. [H. Clark, Law of Domestic Relations
(1968) § 17.5, p. 591]." Evans v. Santoro, 6 Conn. App. 707, 711
n.3, 507 A.2d 1007 (1986). So long as due regard is given to the
presumption, however, "[t]he best interests standard remains the
ultimate basis of a court's custody decision." (Internal quotation
marks omitted.) Garrett's Appeal from Probate, supra, 183; Hao Thi
Popp v. Lucas, supra, 182 Conn. 551.
As these authorities make clear, the presumption does not mean
that the nonparent must, in order to rebut it, prove that the
parent is unfit. It means that the parent has an initial
advantage, and that the nonparent must prove facts sufficient to
put into issue the presumed fact that it is in the child's best
interest to be in the parent's custody. Once those facts are
established, however, the presumption disappears, and the sole
touchstone of the child's best interests remains irrespective of
the parental or third party status of the adults involved. In that
instance, then, neither adult -- the parent or the third party --
enjoys any advantage or suffers any disadvantage as a result of his
or her parental or third party status.
We next address, therefore, the effect of the presumption, if
any, in this case. Ordinarily, that would be a question that we
would leave to the trial court for its factual determination in the
first instance. Under the extraordinary circumstances of this
case, however, we conclude, for two reasons, that it is appropriate
to address the effect of the presumption in the course of this
appeal.
First, it is clear to us that, based on the undisputed facts
of this case, the presumption has been sufficiently rebutted. Put
another way, were the trial court upon our remand to fail to
determine that the presumption was sufficiently rebutted, the
undisputed facts of this case would compel us to conclude that its
determination would be clearly erroneous. Those facts are as
follows. The defendant participated in the public ruse that the
plaintiff was the child's birth mother. Furthermore, for the
nearly first eight years of the child's life, before the initiation
of this action, the plaintiff and the defendant together raised and
nurtured the child. In addition, for the more than seven years
while this case has been litigated, in the trial court and on
appeal, the parties have, by virtue of a court-approved
stipulation, shared joint custody of the child, with the principal
residence of the child being with the plaintiff. Under these
facts, the trial court would abuse its discretion if it were to
determine that the statutory presumption were not rebutted, under
the standards for that determination that our case law articulates.
Thus, we conclude that, as a matter of law, the presumption has
been rebutted in this case.
Second, as we have noted, this case is now more than seven
years old. The question of the ultimate custody of the child has
been left in limbo for an extraordinary length of time. Under
these circumstances, it is incumbent on us to shorten, to the
extent possible, the remaining time it will take to resolve that
question. By addressing and disposing of the question of the
remaining effect, if any, of the statutory presumption in this
case, we exercise our sound appellate discretion so as to eliminate
at least one significant question for determination following our
remand.
On remand, therefore, the trial court will be required to
adjudicate the custody of the child, without regard to the
statutory presumption in favor of the parent afforded by § 46b-56b,
based on the ultimate factor of the child's best interest. There
was ample evidence in this record that, if credited, would have
been sufficient to justify an award of joint custody to both
parties.See footnote 53
We next consider the claims of the defendant that the trial
court improperly: (1) found that the parties contributed equally to
the breakdown of the marriage; (2) awarded periodic alimony and
certain related life insurance benefits to the plaintiff; and (3)
required the defendant to pay the attorney's fees of the plaintiff
and the minor child. With respect to the factual claim of the
parties' contribution to the causes of the marital breakdown, it is
not necessary to detail the evidence supporting the court's
finding. Suffice it to say that we have examined the entire record
with care, and are satisfied that the finding is supported by the
evidence and must stand.
In light of our conclusion, however, that the court will be
required to adjudicate the custody of the child on remand, we
decline to consider the defendant's financial claims. The court's
custody determination may also necessitate an award of child
support, and in light of the fact that the court's financial awards
ordinarily constitute a mosaic; Sunbury v. Sunbury, supra, 210
Conn. 175; the child support award may alter the other financial
awards. Thus, it would serve no useful purpose to review those
awards at this stage of the litigation.
The judgment of dissolution of the marriage is affirmed; the
remainder of the judgment is reversed and the case is remanded for
a prompt trial on the custody of the minor child and on the
financial issues.
In this opinion CALLAHAN, C. J., and NORCOTT and PALMER, Js.,
concurred.
KATZ, J., with whom BERDON and PETERS, Js., join, concurring
in part and dissenting in part. The primary issue in these appeals
is whether the trial court, in an action for the dissolution of a
marriage, has jurisdiction to award custody of a minor child to the
plaintiff wife, when that child was born to a surrogate mother
(surrogate) who, with the consent and cooperation of the plaintiff
wife, had been artificially inseminated with the defendant
husband's sperm. This is a case of first impression for this
court, and it requires us to come to terms with changing family
structures -- an area that has become increasingly complex with
each new scientific innovation in the field of human reproduction.
The majority decides, and I concur, that the trial court had
jurisdiction over the child, thereby enabling it to decide issues
of custody and support. The majority, however, is content to treat
the plaintiff as a third party for purposes of making that
determination. It is that assessment that causes me to dissent.
In June, 1993, the plaintiff filed for the dissolution of her
marriage to the defendant. In addition to her claims for financial
support, relying on General Statutes § 46b-56,See footnote 1 she requested sole
or joint custody of a minor child who was ten years old at the time
of the complaint. The plaintiff acknowledged in her amended
complaint that she was not the child's biological mother and that
she had not adopted the child, but asserted at trial that she
should be considered a parent for the purposes of determining
custody because she and the defendant, the child's biological
father, had acted as the child's parents from the time of the
child's birth.
The defendant moved to dismiss the plaintiff's complaint, on
the ground that because the minor child was not a child of the
marriage, the trial court lacked jurisdiction. Thereafter, the
plaintiff amended her complaint to add a second count invoking
third party status under General Statutes §§ 46b-57See footnote 2 and 46b-59.See footnote 3
After the close of evidence, but prior to judgment, the
defendant moved to open the evidence and requested that the trial
court take judicial notice of two Probate Court judgments, the
first declaring the defendant's paternity of the child and the
second terminating the parental rights of the surrogate and her
husband. The trial court chose not to open the evidence and admit
the Probate Court judgments, reasoning that it would not be a
miscarriage of justice to reject the offer of evidence.
In a memorandum of decision dated November 15, 1995, the trial
court concluded that because the minor child was not a child of the
marriage, had not been adjudicated the natural child of the
defendant, and had not been adopted by either party, the court had
no jurisdiction to decide the custody issues.See footnote 4
The trial court found the following facts, which are not
disputed by the parties. The plaintiff and the defendant were
married in 1983. They had known each other since 1967, and had
begun their relationship in 1971. Both parties wanted to have
children. The plaintiff had been married once before, and was the
mother of three adult sons. Prior to this second marriage, the
plaintiff had undergone tubal ligation and an attempt to reverse
that procedure had been unsuccessful. The plaintiff also suffered
from a partial disability as a result of an automobile accident in
1972, which prevented her from carrying a pregnancy to term. Prior
to the parties' marriage, with the plaintiff's knowledge and
consent, the defendant placed a newspaper advertisement seeking a
woman willing to bear a child for the couple. The surrogate
answered the advertisement and agreed to be impregnated with the
defendant's sperm. The actual insemination, by syringe, took place
at the surrogate's home with both the defendant and the plaintiff
present. Although the surrogate testified that she had become
pregnant after this procedure, the trial court declined to find
that the defendant was the child's biological father because at the
time of trial there had been no adjudication of paternity by the
Probate Court.
Both the defendant and the plaintiff assumed the roles of
parents from the very beginning of the surrogate's pregnancy.
Throughout the prenatal period, the surrogate used the plaintiff's
name, social security number and statistical information for all
birth records and doctor's visits. At times, both the defendant
and the plaintiff escorted the surrogate to the doctor's office.
During the surrogate's pregnancy, the plaintiff went so far as to
stuff pillows underneath her clothing in order to appear pregnant.
At the time of delivery, the surrogate was admitted to the hospital
under the plaintiff's name. A certified copy of the child's birth
certificate bears the names of the plaintiff and the defendant as
the child's mother and father. According to the birth certificate,
the defendant supplied this information to the hospital
authorities. Upon release from the hospital, the surrogate
surrendered custody of the baby to the plaintiff and the defendant,
who, together, proceeded to raise the child with no further
participation by the surrogate. Neither the plaintiff nor the
defendant formally adopted the child.
I agree with the majority that the trial court abused its
discretion in refusing to admit the Probate Court judgments.
"`Whether or not a trial court will permit further evidence to be
offered after the close of testimony in the case is a matter
resting within its discretion. State v. Levy, 103 Conn. 138, 145,
130 Atl. 96 [1925]; State v. Chapman, 103 Conn. 453, 479, 130 Atl.
899 [1925]; King v. Spencer, 115 Conn. 201, 203, 161 Atl. 103
[1932]; State v. Swift, 125 Conn. 399, 405, 6 Atl. (2d) 359
[1939].' Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689
[1940]. In the ordinary situation where `a trial court feels that,
by inadvertence or mistake, there has been a failure to introduce
available evidence upon a material issue in the case of such a
nature that in its absence there is serious danger of a miscarriage
of justice, it may properly permit that evidence to be introduced
at any time before the case has been decided.'" State v.
Holmquist, 173 Conn. 140, 152, 376 A.2d 1111, cert. denied, 434
U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977).
In its memorandum of decision, relying on the presumption that
a child born to a married woman is the child of her husband;
Schaffer v. Schaffer, 187 Conn. 224, 226, 445 A.2d 589 (1982); the
trial court assumed that the surrogate and her husband could claim
parental rights. The trial court stated that no "clear, convincing
and satisfactory proof" had been offered to prove that the minor
child was not issue of the surrogate's marriage. The trial court,
in essence, found that neither the plaintiff nor the defendant
could claim parental status and, accordingly, concluded that the
child could not be issue of the marriage between the plaintiff and
the defendant. Therefore, the trial court concluded that it had no
jurisdiction under § 46b-56 to determine the custody issues. The
trial court so concluded even though it had been offered proof of
the defendant's paternity in the defendant's motion to open the
evidence.
The trial court further stated in its decision that neither
party was prejudiced by the refusal to open the evidence, because
"[a] dissolution action is not the only vehicle by which an
individual may petition our courts for an order of custody based
upon the best interests of the child." It went on to suggest that
the appropriate means by which the parties might seek custody was
a habeas petition pursuant to General Statutes § 46b-1 (8).See footnote 5 I
disagree with the trial court's finding as to prejudice.
Had the trial court admitted the Probate Court judgments, the
entire posture of the case would have changed and the trial court
would have had jurisdiction. Neither the surrogate nor her husband
would have had any standing to participate in the outcome of this
case. The defendant would have been allowed to proceed under
§ 46b-56 as the natural father of the child, and the plaintiff, at
the very least, would have been able to proceed as a third party
under § 46b-57 as pleaded, without having to institute separate
proceedings.
Of even greater significance is the fact that the trial
court's ruling has left the minor child in judicial limbo.See footnote 6 The
defendant has been adjudicated to be the child's father, any
parental rights the surrogate may have had have been terminated,
the plaintiff, the only "mother" the child has ever known has been
adjudicated a stranger, and, although the parties currently share
custody as part of a stipulated agreement, the child's living
arrangements are perpetually in doubt. In light of the child's
independent interest in continuity and stability in family life;
Cappetta v. Cappetta, 196 Conn. 10, 16, 490 A.2d 996 (1985); the
trial court had a heightened obligation to consider all pertinent
information available to it.
Therefore, I agree with the majority that the trial court
abused its discretion in failing to open the evidence in order to
admit the two Probate Court judgments. The defendant's failure to
act earlier should not be used to defeat the plaintiff's claim of
jurisdiction, when to do so would greatly affect the lives and the
rights of the other parties. Indeed, it is the threat of prejudice
to the other parties that underlies the rule that a trial court
may, in its discretion, refuse to open the evidence. State v.
Chapman, supra, 103 Conn. 479 ("trial court may, in the exercise of
its discretion . . . permit additional evidence to be introduced,
so long as the rights of the parties are fairly protected"). I now
turn to the merits of the case and my disagreement with the
majority.
After a careful review of the arguments and theories presented
by the parties and the amici, as well as pertinent authority from
other jurisdictions and from scholarly commentary, I agree with the
majority that: (1) the trial court had jurisdiction to determine
the custody of the minor child pursuant to § 46b-56; and (2) that
in the marital dissolution context in general, and in § 46b-56
specifically, a "child" means a "child of the marriage." I
believe, however, unlike the majority, that the meaning of that
concept is not limited to a child conceived by both parties, a
biological child of one parent who has been adopted by the spouse,
and a child conceived through artificial insemination as recognized
under General Statutes §§ 45a-771 through 45a-779. Under the
specific facts of this case, it is consistent with the historical
underpinnings of the statutory requirement to conclude that the
parties' minor child is a child of the marriage. I would conclude,
therefore, that because the child is a child of the marriage and
because the plaintiff is a party to that marriage, the plaintiff
must be considered a "parent" for the purposes of determining the
child's custodial arrangements under § 46b-56 without regard to the
presumption regarding custody as set forth in General Statutes
§ 46b-56b.See footnote 7
"The process of statutory interpretation involves a reasoned
search for the intention of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of this case, including
the question of whether the language actually does apply. In
seeking to determine that meaning, we look to the words of the
statute itself, to the legislative history and circumstances
surrounding its enactment, to the legislative policy it was
designed to implement, and to its relationship to existing
legislation and common law principles governing the same general
subject matter." (Citations omitted; internal quotation marks
omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422,
431-32, 692 A.2d 742 (1997).
At issue in this case is the concept that the minor child be
the "child of the marriage." As the majority points out, the
revisions of § 46b-56 and its predecessor statutes have been
interpreted by this court to confine the jurisdiction of the
Superior Court to determine the custody of children to only those
children who fit the descriptor "child of the marriage."
Remkiewicz v. Remkiewicz, 180 Conn. 114, 117, 429 A.2d 833 (1980);
Morrow v. Morrow, 165 Conn. 665, 668-69, 345 A.2d 561 (1974);
LaBella v. LaBella, 134 Conn. 312, 316, 57 A.2d 627 (1948). The
plaintiff has claimed that, under the facts of this case, the child
must be considered a child of her marriage to the defendant. The
defendant contends, and the majority agrees, that the child is not
a child of the marriage. I agree with the plaintiff and would
conclude that because our past decisions were based on facts not
analogous to those in the present case, and because those decisions
fail to explain adequately the textual and historical significance
of the phrase "child of the marriage," they provide little support
for the defendant's argument and have little controlling effect on
our decision in this case.
The descriptor "child of the marriage" typically has been used
as a means by which to distinguish between illegitimate and
legitimate offspring. Morrow v. Morrow, supra, 165 Conn. 668.
Children who otherwise might have been deemed illegitimate were
presumed at common law to be "children of the marriage" if they
were born to the wife during the course of the marriage or, if born
prior to the marriage, they were adopted by the nonbiological
parent. Id., 669. This presumption of legitimacy shifted the
burden of persuasion to the proponent of illegitimacy; Holland v.
Holland, 188 Conn. 354, 358, 449 A.2d 1010 (1982); who was required
to present "clear, convincing and satisfactory proof" that the
husband was not the father of the child. Schaffer v. Schaffer,
supra, 187 Conn. 226. Absent such proof, a child born to the wife
during the course of the marriage has been considered a child of
the marriage, even though the marriage itself took place after the
child was conceived. See annot., 84 A.L.R.4th 655, 679-84 (1991).
The traditional explanation for this rule has rested in the
concepts of bastardy and inheritance. Note, "Presumption of
Legitimacy of a Child Born in Wedlock," 33 Harv. L. Rev. 306
(1919-20) ("[t]his [is] in accord with the strict notions of the
common [law], and [is] probably based upon regard for property
rights, a bastard being incapable of inheriting or of having any
heirs except those of his own body"); see J. Ayer, Jr., "Legitimacy
and Marriage," 16 Harv. L. Rev. 22, 23 (1902-1903) ("since it is
necessary that the heir should be one whose right could be
ascertained . . . marriage, an act capable of proof, could be
relied upon as determining the heir"). The common-law adoption of
this presumption was thus an equitable response to a perceived
legal deficiency.
Although most issues of inheritance and property have been
obviated by statute; see, e.g. General Statutes § 45a-438 (b) ("for
purposes of intestate succession, an individual is the child of his
genetic parents, regardless of marital status of such parents");
courts continue to rely on this presumption in certain instances.
See, e.g., Holland v. Holland, supra, 188 Conn. 354; Schaffer v.
Schaffer, supra, 187 Conn. 224. In those cases in which courts
continue to employ the presumption, it is because those courts have
found that the equities or underlying policy issues of the case
demand it, and not simply as a procedural survival from an earlier
time, lacking in all import and meaning. See, e.g., Ex parte
Presse, 554 So. 2d 406, 412 (Ala. 1989) (public policy
considerations causing husband of child's mother at time of child's
birth to be presumed father weightier than considerations
supporting claim of biological father who did not acknowledge
paternity until years later). Furthermore, in those cases in which
the custodial status of a child is in question, the existence of
the marriage furnishes this court with a principled basis upon
which to rest our oft-expressed policy of supporting the integrity
of the family unit and protecting the best interests of the child.
See Castagno v. Wholean, 239 Conn. 336, 341-52, 684 A.2d 1181
(1996).
This interest in protecting a child's right to family
identification and family integrity is paramount; Moore v. East
Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 52 L. Ed. 2d 531
(1977); and is reflected in the legislative debate over the
familial status of a child conceived through artificial
insemination. In 1975, the Connecticut General Assembly adopted
legislation that declared that "[a]ny child or children born as a
result of [artificial insemination with the semen of a donor] shall
be deemed to acquire, in all respects, the status of a naturally
conceived legitimate child of the husband and wife who consented to
and requested the use of [artificial insemination with the semen of
a donor]." Public Acts 1975, No. 75-233, § 5, now codified as
General Statutes § 45a-774.See footnote 8 At the same time, the General
Assembly adopted, as a statement of policy and purpose, legislation
declaring that the public policy of Connecticut has been to adhere
to the common-law rule that every child born of a married woman in
the course of a marriage is a legitimate child of that marriage.
Public Acts 1975, No. 75-233, § 1, now codified as General Statutes
§ 45a-771. A proponent of the legislation explained that its
adoption was a matter of "good public policy," and that its purpose
was to avoid the problems that had arisen in other jurisdictions
where children born through artificial insemination had been deemed
not to be issue of the marriage.See footnote 9 18 H.R. Proc., Pt. 4, 1975
Sess., pp. 1836-37, remarks of Representative Richard D. Tulisano.
The various revisions of § 46b-56 also reflect the
legislature's intent that the concept that the minor child be a
"child of the marriage" be given a broader reading than previously
afforded by this court. This conclusion is supported by the
legislative history, which reveals that the individual legislators
were primarily concerned with the possibility that courts would not
consider adopted children to be issue of the marriage. See 10 S.
Proc., Pt. 6, 1963 Sess., p. 2101, remarks of Senator Paul J.
Falsey ("[T]he [statutes] dealing with divorce and the orders that
the court may enter . . . regarding support and custody of children
[make] references in some instances to children of the marriage,
which would seem to eliminate adopted children. This bill would
make it clear that the court could make such orders to adopted
children as well.").
I agree with the majority that although the statute as revised
allows persons other than the parents to contest custody, the fact
that such a contest may take place only within the context of an
action for an annulment, a dissolution of marriage or a legal
separation; General Statutes § 46b-56 (a), incorporating by
reference General Statutes § 46b-45; militates against a reading
that would totally eliminate the concept of "child of the
marriage." Contrary to the majority, however, I am persuaded from
the legislative history of the statutes governing custody and
related issues that a "child of the marriage" is not always
necessarily the biological or adopted offspring of both parents.
I read this history as a recognition by the legislature that there
are certain factual circumstances under which a child who is the
biological or adopted child of only one of the parties to the
marriage is nonetheless considered a "child of the marriage" for
the purposes of determining inheritance, support or custody. This
concept was created originally as an equitable response to
perceived legal deficiencies, and its historical significance
obliges the court to expand the term "child of the marriage" beyond
the gatekeeping function assigned to it by the majority.
Accordingly, I would conclude that § 46b-56 continues to
incorporate the concept that the child whose custody is at issue be
a child of the marriage that is being dissolved, but that it no
longer requires that in every case the child be the biological or
the adopted child of both parties to the marriage.
This court previously has considered similar issues and has
concluded that the Superior Court lacked jurisdiction to determine
the custody of children because they were deemed not to be children
of the marriage. See, e.g., Remkiewicz v. Remkiewicz, supra, 180
Conn. 117 (stepfather who did not adopt child born four years prior
to marriage could not be required to pay support for child after
marriage had ended); Morrow v. Morrow, supra, 165 Conn. 668-69
(court lacked jurisdiction to award custody because child was
conceived and born before marriage and, therefore, was not child of
marriage); LaBella v. LaBella, supra, 134 Conn. 316 (court lacked
jurisdiction to award custody of minor child to wife because child
was offspring of husband's adultery and not child of marriage). In
all of those cases, however, the birth of the child had no
relationship to the act of marriage -- in LaBella the child was the
product of an extramarital affair, in Morrow and in Remkiewicz the
child was born well before the parties were married -- and,
therefore, the holdings are inapposite to the facts of this case,
in which the parties were married to raise this child and both
parties acquiesced and participated in planning her conception and
birth. Furthermore, these are cases involving limitations on
jurisdiction, which the majority recognizes "have been overtaken by
subsequent statutory changes." Remkiewicz v. Remkiewicz, supra,
116;See footnote 10 Morrow v. Morrow, supra, 670; LaBella v. LaBella, supra,
316-17. Consequently, because these cases focused on
jurisdictional limitations, they are of limited value in defining
who is a parent under § 46b-56.
The majority maintains that the statutes governing dissolution
control the playing field and relies on our cases to define the
contours of the concept of a "child of the marriage." At first
glance the analysis appears to apply traditional rules of statutory
interpretation. As I have previously noted, the cases upon which
the majority relies were decided in the context of jurisdictional
limitations that have been overtaken by statutory amendments.
Therefore, I suggest that reliance on these cases to interpret the
statute in its present form more accurately reflects the
application of the common-law principles embodied in those cases,
thereby raising the specter that this case is no longer simply a
matter of statutory construction. To the extent that the majority
implicitly acknowledges the importance of common-law equitable
considerations in deciding who is a parent, I agree that we should
not disavow equitable considerations.
Although the method the parties in the present case chose to
bring a child into being was unorthodox, the marriage itself and
the child's place in that marriage were the very essence of a
traditional marriage and family. The child in this case has more
in common with a child who is the product of artificial
insemination than with the children at issue in LaBella, Morrow or
Remkiewicz. See footnote 9 of this opinion and the accompanying
text. In the present case, the plaintiff and defendant were
married to raise this child. Because the plaintiff was unable to
conceive or bear a child herself, she and the defendant
participated in a procedure by which a surrogate was inseminated
with the defendant's sperm. The plaintiff assisted in the actual
insemination of the surrogate, and was present at the conception.
Both the plaintiff and the defendant intended from the time the
child was conceived that they should be the only mother and father
the child ever knew. Although the parties failed to finalize their
relationship with the child through the proper probate procedures,
it is clear from their actions, including the listing of the
plaintiff as the child's mother on the original birth certificate,
that they intended that the plaintiff should have all the rights
and concomitant responsibilities of a biological and psychological
mother. For ten years the plaintiff cared for the child,
fulfilling the child's physical, emotional and psychological needs.
In light of these facts, and with a renewed understanding of the
historical and social underpinnings of the concept that the child
at issue be a "child of the marriage," I would conclude that the
child here is a child of the marriage between the plaintiff and the
defendant.See footnote 11
Having concluded that the child was a child of the marriage,
I next address the issue of the plaintiff's status in the custody
determination. Although it is clear, as the majority holds, that,
had the trial court acknowledged the Probate Court judgments, it
could have decided the plaintiff's claims regarding child custody,
treating the defendant as the child's parent and the plaintiff as
a third party nonparent, the plaintiff nevertheless has asked this
court to find that the trial court had authority under § 46b-56 to
determine the child's best interests as between two parents seeking
custody. Allowing the plaintiff to proceed as a parent under
§ 46b-56, rather than as a nonparent who must overcome the
presumption of § 46b-56b,See footnote 12 is a crucial distinction because § 46b-56b places a far heavier burden on a nonparent than on a parent.
As a parent, the plaintiff would be entitled to have her custody
claim given the same level of consideration as the defendant's
claim, whereas if she were to proceed as a nonparent there would be
a presumption in favor of the defendant, whose parental status
previously has been adjudicated by the Probate Court. "The
significance of parental status in custody . . . proceedings is
profound. In a custody dispute, parents stand on equal footing
with respect to one another, and the court determines custody under
a best interests of the child standard. When the dispute is
between a parent and a nonparent, not only is the parent usually
considered the preferred custodian, but the nonparent may even be
found without standing to challenge parental custody."See footnote 13 N.
Polikoff, "This Child Does Have Two Mothers: Redefining Parenthood
to Meet the Needs of Children in Lesbian-Mother and Other
Nontraditional Families," 78 Geo. L.J. 459, 471-72 (1990); see
Garrett's Appeal from Probate, 237 Conn. 233, 236, 676 A.2d 394
(1996); Perez v. Perez, 212 Conn. 63, 77-80, 561 A.2d 907 (1989).
The defendant argues in response that, because the plaintiff
has no biological ties to the child and did not adopt her, she
would be able to proceed only as a third party. The majority
agrees with the defendant that the plaintiff is not his equal. If
the plaintiff were not able to prove the facts alleged in her
complaint supporting her theory of estoppel, the trial court would
typically be bound by the presumption of § 46b-56b. See footnote
7 of this opinion. I disagree with the majority and would conclude
that, under the specific factual circumstances of this case, it is
appropriate to treat the plaintiff as the child's parent, and not
as a third party. See In re Marriage of Allen, 28 Wash. App. 637,
639, 626 P.2d 16 (1981) ("unique circumstances may warrant unique
custody decrees").
Not surprisingly, very few courts have been faced with the
question before the court in the present case. The issues of
parentage and custody usually arise in those dissolution actions in
which the mother or putative father of a child avers that the
putative father is not the child's biological father; see, e.g.,
Atkinson v. Atkinson, 160 Mich. App. 601, 606, 408 N.W.2d 516
(1987); or in the aftermath of the dissolution of a nontraditional
relationship in which only one party has a biological tie to the
child. See, e.g., Alison D. v. Virginia M., 155 App. Div. 2d 11,
552 N.Y.S.2d 321 (1990); see also annot., 84 A.L.R.4th 655 (1991).
In the future, however, as the concept of family becomes more fluid
and as science continues to expand the frontiers of human
reproduction, I am certain that more courts will be faced with fact
patterns much like the one we address today. Michaud v. Wawruck,
209 Conn. 407, 415, 551 A.2d 738 (1988). Indeed, as the science of
blood and deoxyribonucleic acid (DNA) testing becomes more exact,
questions of biological parentage may quickly be answered; see
Weidenbacher v. Duclos, 234 Conn. 51, 71, 661 A.2d 988 (1995);
Palomba v. Gray, 208 Conn. 21, 36-37, 543 A.2d 1331 (1988) (Shea,
J., concurring); leaving only the increasingly difficult questions
rooted in social ideals and mores.
Although, traditionally, family law to a great degree has been
a creature of statute, family law has also been the responsibility
of state courts reacting to fundamental changes in the way that the
family has evolved. The traditional American nuclear family of a
married couple and their own children has been subsumed by a range
of alternatives.See footnote 14 See Michaud v. Wawruck, supra, 209 Conn. 415.
As expected, some courts are more amenable to the changes in the
definition of family than others.See footnote 15 "Across the nation, state
courts are reexamining the roles of biological ties and other
relationships in the family. Courts consider those relationships
against a background of new techniques, medical advances, and
evolving life styles." S. Pollack, "The Art of Judging," 71 N.Y.U.
L. Rev. 591, 609 (1996); see, e.g., Baehr v. Lewin, 74 Haw. 530,
580, 852 P.2d 44 (1993) (because denial of marriage license to
homosexual couple could constitute sex-based discrimination it must
be reviewed subject to strict scrutiny under state equal protection
clause); Bezio v. Patenaude, 381 Mass. 563, 578, 410 N.E.2d 1207
(1980) (homosexuality does not render mother unfit custodian); In
re Baby M., 109 N.J. 396, 429-44, 537 A.2d 1227 (1988) (surrogacy
contract rejected as conflicting with existing statutes and public
policy of state); In re Jacob, 86 N.Y.2d 651, 656, 660 N.E.2d 397,
636 N.Y.S.2d 716 (1995) (unmarried companion, whether male or
female, of child's biological mother can adopt mother's child).
"Brush stroke by brush stroke, state courts are painting a new
portrait of the American family." S. Pollack, supra, 613.
In recognition of the new portrait of the American family, the
plaintiff and the Connecticut Chapter of the American Academy of
Matrimonial Lawyers, in its amicus brief, urge this court to adopt
the doctrine of the "equitable parent," as set forth in Atkinson v.
Atkinson, supra, 160 Mich. App. 601.See footnote 16 The court in Atkinson
developed a three part test to determine whether a nonbiological
parent should be granted parental status in a custody dispute.
Under that test, a nonbiological parent may be on equal footing
with a biological parent if "(1) the [person] and the child
mutually acknowledge a relationship as [parent] and child, or the
[biological parent] of the child has cooperated in the development
of such a relationship over a period of time prior to the filing of
the complaint for divorce, (2) the [person] desires to have the
rights afforded a parent, and (3) the [person] is willing to take
on the responsibility of [raising the child]." Id., 608-609.
Since the Atkinson decision, other jurisdictions have relied on the
doctrine of the equitable parent, or on similar theories, to allow
a nonparent to seek custody under the same criteria as would be
applied to a biological or adoptive parent. See, e.g., Carter v.
Brodrick, 644 P.2d 850, 855 (Alaska 1982) ("those relationships
that affect the child which are based upon psychological rather
than biological parentage may be important enough to protect
through custody"); In re Marriage of Gallagher, 539 N.W.2d 479,
481-82 (Iowa 1995) (adopting modified Atkinson test); State in
Interest of J.W.F., 799 P.2d 710, 715 (Utah 1990) (stepfather has
standing to seek custody under best interests standard); In re
Marriage of D.L.J. & R.R.J., 161 Wis. 2d 420, 426-29, 469 N.W.2d
877 (App. 1991) (applying Atkinson factors, nonbiological father
who fulfilled numerous parental duties granted equitable parent
status).
Although the equitable parent doctrine has some intrinsic
appeal, I am reluctant to adopt such new law at this time and under
these circumstances, particularly when the plaintiff's unusual
predicament has been brought about, in part, by the parties'
deceptive conduct.See footnote 17 My disapproval of their deceptive actions,
however, cannot color my interpretation of the law. Rather, it has
been my goal to resolve this case in a way that is in keeping with
the law, while at the same time recognizing the highly unusual
facts of this case. As the amicus Connecticut Chapter of the
American Academy of Matrimonial Lawyers concedes, the plaintiff
cannot be both a parent and a third party. I would resolve this
issue by resort to common sense.
"Common sense . . . is a highly significant guide to statutory
interpretation." Trumbull v. State, 206 Conn. 65, 80, 537 A.2d 431
(1988); see Blakeslee Arpaia Chapman, Inc. v. EI Constructors,
Inc., 239 Conn. 708, 741, 687 A.2d 506 (1997) ("`[i]n the
interpretation of statutory provisions, the application of common
sense to the language is not to be excluded'"). Section 46b-56
provides that, subject to the provisions of General Statutes § 46b-56a,See footnote 18 the Superior Court may assign the custody of a child to both
parents jointly, to either parent or to a third party. Section
46b-56 also incorporates, by reference, General Statutes § 46b-45,
which deals with annulment, dissolution of marriage and legal
separation. A common sense reading of these statutes in their
totality leads me to conclude that, for the purposes of § 46b-56,
"third party" must be defined as a third party to the marriage that
is at issue in the controversy before the court. Accordingly, if
a person is a party to the marriage being dissolved, and the child
whose custody is at issue is determined to be a child of that
marriage, that person is not a third party and should be treated as
a "parent."
If, as I have concluded, the child in the present case is the
child of the plaintiff's marriage to the defendant, it follows that
the plaintiff must be given parental status for the purpose of
determining custody. As the attorney general points out in his
amicus brief, "[i]t is logical to assume that it is generally in
the child's best interest to have more than one parent . . . [and]
it is reasonable in the context of this dissolution to construe the
term `parent' in . . . § 46b-56 to include the plaintiff . . . ."See footnote 19
The issue of parental identity is far more than a mere formality to
the child who has her own independent interests in the integrity of
the family unit. Weidenbacher v. Duclos, supra, 234 Conn. 74. We
presume that in defining the contours of parentage, the legislature
acted in accordance with the underlying purpose of chapter 815j of
the General Statutes, which is to protect the best interests of the
child. Interpreting § 46b-56 to accommodate the child's definition
of what is a parent, and thereby acknowledge the plaintiff as her
mother, serves to maintain the continuity and stability of the
child's environment consistent with that legislative purpose.
The California Court of Appeal, recognizing the traditional
role of the common law in applying old legal principles to new
technology, applied many of the same considerations in deciding a
recent case involving Luanne and John Buzzanca, who had agreed to
have an embryo genetically unrelated to either of them implanted in
a woman, a surrogate, who would carry and give birth to the child
for them. Buzzanca v. Buzzanca, California Court of Appeal, Docket
No. GO22147 (4th D. March 10, 1998). After fertilization,
implantation and pregnancy, the Buzzancas separated, and the
question of who the child's lawful parents were came before the
trial court as part of the dissolution action. Luanne claimed that
she and John were the child's lawful parents, John disclaimed any
responsibility, and the surrogate stated that she made no claim to
the child. The trial court concluded that the child had no lawful
parents. Id., 2. First, the trial court accepted a stipulation
that the surrogate and her husband were not the "biological"
parents. The trial court then concluded that Luanne was not the
mother because she had neither contributed the egg nor given birth,
and that John was not the father because he had not contributed the
sperm and therefore had no biological relationship with the
child.See footnote 20 Id.
On appeal, John Buzzanaca argued that because under
California's Uniform Parentage Act; Cal. Fam. Code § 7600 et seq.
(Deering 1996); and particularly as set forth in § 7610 of
California's Family Code, there are only two ways a woman can
establish motherhood, i.e., by giving birth or by contributing
genetically, Luanne Buzzanca could not be the child's mother.See footnote 21 He
further argued that, because the identities of the genetic
contributors were not known to the court, the surrogate and her
husband had to be the legal parents. Buzzanca v. Buzzanca, supra,
California Court of Appeal, Docket No. GO22147, 6-7. Conversely,
Luanne continued to argue that she and John were the legal parents.
The Court of Appeal held that both Luanne and John were the
parents, concluding that "[j]ust as a husband is deemed to be the
lawful father of a child unrelated to him when his wife gives birth
after artificial insemination, so should a husband and wife be
deemed the lawful parents of a child after a surrogate bears a
biologically unrelated child on their behalf. In each instance, a
child is procreated because a medical procedure was initiated and
consented to by intended parents." Id., 3.
First, the court cited at length to an earlier case involving
surrogacy in which it had held that although § 7610 contains no
direct reference to genetics, genetics is subsumed in the words
under this part, and "that genetic consanguinity was equally
`acceptable' as `proof of maternity' as evidence of giving birth."
Id., 8; see Johnson v. Calvert, 5 Cal. 4th 84, 93, 851 P.2d 776, 19
Cal. Reptr. 2d 494 (1993). In reaching that decision by a "parity
of reasoning"; Johnson v. Calvert, supra, 92; the court in Johnson
had looked to a variety of statutes, all of which by their terms
applied only to paternity. Id., 90-92. Indeed, in Buzzanca, the
court stated that "[i]t was only by a parity of reasoning from
statutes which, on their face, referred only to paternity that the
court in [Johnson] reached the result it did on the question of
maternity." (Emphasis in original.) Buzzanca v. Buzzanca, supra,
California Court of Appeal, Docket No. GO22147, 8. In the same
vein, recognizing that the legislature may not have contemplated
the application of the artificial insemination statute to a
gestational surrogacy case in which the genetic donors are unknown
to the court, the Buzzanca court then turned to California's
artificial insemination statute; Cal. Fam. Code § 7613 (Deering
1996); as "the clearest expression of past legislative intent when
the legislature did contemplate a situation where a person who
caused a child to come into being had no biological relationship to
the child." Buzzanca v. Buzzanca, supra, 10. The court concluded
that there was no reason to distinguish between husbands and wives
because they are equally situated from the point of view of
consenting to an act that brought the child into being. Id.,
20-21.
Given their roles as the intended parents in the conception
and birth of the child, and recognizing further that public policy
favors, whenever possible, the establishment of legal parenthood
with the concomitant responsibility, the court concluded that
Luanne and John Buzzanca were the legal parents of the child. Id.,
24. Although the court called upon the legislature to sort out
parental rights and responsibilities of those involved in
artificial reproduction, and indeed, appreciating that the
legislature is the preferred forum for lawmaking, the court
recognized its ability to make decisions on an ad hoc basis without
necessarily imposing some grand scheme, looking to the imperfectly
designed body of statutes and a growing body of case law for
guidance in light of the applicable family law principles. Id.,
24-25.
In the present case, the facts are more compelling because
they go well beyond an agreement that set in motion a medical
procedure that resulted in the birth of a child. The parties in
this case performed as parents pursuant to that agreement for more
than ten years. If intent of the parties were the ultimate basis
of a decision of lawful parentage, this case presents the best
example of the need of the court to be able to establish motherhood
by conduct apart from giving birth or being genetically related to
a child.
I acknowledge that to extend parental rights to an adult who
has no biological ties to a child could be seen as opening the door
to an onslaught of litigants seeking to have a variety of family
relationships validated for the purpose of determining custody. I
also acknowledge the possibility that certain unscrupulous parties
could use such a decision as a new tool for leverage in an inimical
divorce action. It is not my intent to open the door to all
unrelated third parties who happen to feel a bond of affection with
a child. Indeed, the factual context of this case, limited as it
is to dissolution, separation and annulment proceedings pursuant to
§ 46b-56, substantially lessens this risk. Nor do I intend to
invade or diminish the rights of the biological parent. Biology,
however, is not always dispositive when we are making decisions
regarding the care and welfare of children. See Weidenbacher v.
Duclos, supra, 234 Conn. 76. My decision is limited to this
extreme case, in which the marriage was entered into to raise this
child and the plaintiff, who seeks custody, has acted as the
child's parent from birth and no other party has acted in the same
parental role, such that to deprive the child of the care and
affection of the plaintiff would be to deprive that child of a
parent.See footnote 22
In addition, I note that by deeming the minor child a "child
of the marriage" and by concluding that, as a party to that
marriage, the plaintiff, as a nonbiological parent, must have equal
footing with the defendant in the custody determination, I
recognize not only the plaintiff's right to seek custody, but also
her ongoing responsibility to provide care and support for the
child, apart from any custody determination. She may not assume or
shed her parental role at will. Finally, I caution that my
conclusion would not automatically entitle a nonbiological parent
to custody. The determination of custody should focus less on the
legal relationship between the parties than on the best interests
of the child.
I would reverse the judgment of the trial court regarding its
lack of jurisdiction to determine custody of the minor child and
remand the case to that court for determination of custody and
support pursuant to § 46b-56, treating both the defendant and the
plaintiff as parents, and applying the ultimate standard -- the
best interests of the child.
Accordingly, I respectfully dissent from part III of the
majority opinion.
Footnotes
Footnotes