Delaware court: Nonbiological mom can share custody

A lesbian who paid child support for three children born to her former partner is entitled to share custody of the children, Delaware's highest court has ruled. But in the ruling issued Tuesday, a three-judge panel of the Delaware supreme court did not rule on the critical issue of whether Susan Symes was a "de facto parent" of the triplets born in 1997 to Elizabeth Symes.

Instead, the court based its dismissal on the "acceptance of benefits" doctrine. Elizabeth Symes had appealed a family court ruling declaring Susan Symes to be a de facto parent.

By accepting child support payments from Susan Symes, awarded on the basis of the family court's de facto parent determination and joint custody judgment, Elizabeth Symes gave up her right to challenge the family court's decision, Justice Randy Holland wrote.

"No rule is better settled than that a litigant who accepts the benefits or any substantial part of the benefits of a judgment or decree is thereby stopped from reviewing and escaping its burdens," Holland wrote, citing a federal appeals court ruling from 1894. "[She] cannot avail [herself] of its advantages, and then question its disadvantages in a higher court."

Attorneys representing the two women, who began their relationship in 1994 and separated in 2003, were not immediately available for comment Thursday. Drewry Fennell, executive director of the American Civil Liberties Union of Delaware, which filed a friend-of-the-court brief on Susan's behalf, said the ruling left open the larger issue of gay and lesbian rights.

"This particular case was dismissed for reasons that had nothing to do with the substantive matters being appealed," Fennell said. "I don't think it was a win or loss for either side."

In a brief filed with the supreme court in November, Elizabeth Symes, whom the children called "Mommy," argued that the family court judge, ruling in a case of first impression in Delaware, went beyond legislative and statutory limits in granting custody to Susan Symes—"Mommy Sue," as the children call her—who gave birth to a fourth child in 2001 using sperm from the same anonymous donor used by Elizabeth Symes.

Under Delaware law, a nonbiological third party usually does not have standing to petition for custody of a child unless there are exceptional circumstances involving dependency or neglect. Exceptions also are made for a stepparent seeking custody after the death or disability of a child's custodial parent.

Courts in Delaware and other states also have ruled that adults who are not biological or adoptive parents but who have developed close physical and psychological bonds with children in a family context can be considered "de facto" parents. Elizabeth Symes's attorney, Lois Dawson, suggested that the family court had carved out a special exception in the law for custody issues involving gay couples.

Susan Symes's lawyers argued that the two women had agreed that each would become pregnant through artificial insemination, that they had jointly selected the names of the triplets, and that they agreed to raise the children together and share parenting responsibilities. (AP)