A North Carolina Appeals Court has ruled that a nonbiological mother, despite sharing custody of the child she and her former partner had via IVF, does not owe child support because she is not a legal parent and did not agree in writing to provide support.
The Trial Court Ruling
A 2021 trial court ruling from Judge J. Rex Marvel had said that E’Tonya Carter, the ex-partner of Tricosa Green, was liable for child support of Alisa, the child she and Green had jointly planned for and whom Carter gave birth to via IVF. Carter “held herself out” as Alisa’s parent and had been granted court-ordered 50/50 custody. Marvel wrote, “The duty of support should accompany the right to custody in cases such as this one” and “The terms Mother and Father” in the child-support statute “should be read to allow for gender neutral application to parent and parent.”
The Appeals Court Ruling
This week’s Court of Appeals ruling, however, overturns that. Judge Donna Stroud wrote that under the current statutes, only a biological or adoptive parent is a legal parent, and therefore, in neither same- nor different-sex unmarried couples who have a child via IVF can the nonbiological partner be required to pay child support, unless there is an agreement in writing or if, for different-sex couples, the male partner is the donor of the sperm. If Carter is required to pay child support, she said, that would mean treating same- and different-sex couples unequally. (Although I’m not a lawyer, I’ll observe that it still seems there’s an inequality if different-sex couples get an exception when the male partner is the donor of the sperm. That’s prioritizing genetic connections over other types of legitimate family ties.)
Stroud did admit:
The trial court’s attempt to impose one obligation of a mother or father—child support—upon Partner, to go along with the benefit of joint custody already conferred upon her is understandable. It may seem only fair for Mother and Partner to share the responsibility of financial support for Alisa along with the benefits of joint physical and legal custody. It may seem just as fair to require a stepfather or male partner who stands in loco parentis to his partner’s child to pay child support, especially if he also shares custody with the child’s natural or legal parent.
In the end, however, Stroud concluded that the current law does not require such financial support from either type of couple, adding, “We fully appreciate the difficult issues created by IVF and other forms of assisted reproductive technology, but only the General Assembly has the authority to amend our statutes to address these issues.”
The Dissent
Appeals Court Judge Julee Flood, a Republican like Stroud, joined her in the opinion, but Judge Toby Hampson, a Democrat, dissented. He argued that because Carter had been granted legal custody (which no one is contending), with the court finding that she had a “parent-child relationship” with Alisa, she “was transformed into a parent—certainly a de facto parent—through the parties’ actions.” He cited other North Carolina cases to argue that consistent with them, “the duty of support should accompany the right to custody.”
He explained further that Carter, the plaintiff, “has been found by a court in a custody action to be a parent to the minor child…. Plaintiff voluntarily assumed this status even before the birth of the child. Plaintiff actively advocated for this status in the custody proceeding.” Therefore, “As a parent, Plaintiff may be held liable for child support.”
And yes, it seems wrong of Carter to want equal custody without having to pay support. Hampson noted this, writing, “Having disavowed any support obligation or parental status with respect to support, Plaintiff’s custodial rights—obtained by her allegations of parental status and obligations—may be revisited.” Whether Green decides to pursue this is an open question.
The Implications
What seems most evident from all this is that North Carolina law needs clarity on the question of who is a parent in the case of a child born via IVF (and other forms of assisted reproduction). This is yet another reason that states need to update their parentage laws to account for the many ways of family formation and many types of families today—as the Michigan Legislature did this week and as the Massachusetts legislature could do any day now if they get themselves in gear. Outdated laws can deny children legal protections and/or financial support, as this report from the Movement Advancement Project has detailed and as this case clearly shows.
For more on how to secure your parentage as an LGBTQ parent, see “LGBTQ Paths to Parentage Security,” a guide that GLAD and I created, at lgbtqparentage.org.
