Supreme Judicial Court of Massachusetts, Middlesex
Heard: April 5, 2016.
motion to dismiss was heard by Jeffrey A. Abber, J.
Supreme Judicial Court granted an application for direct
Lisa Bonauto (Elizabeth A. Roberts, Teresa Harkins La Vita,
Patience Crozier, & Joyce Kauffman with her) for the
Jennifer M. Lamanna for the defendant.
following submitted briefs for amicus curiae:
Thomas Brown for Greater Boston Legal Services & others.
R. Shulman, Brook Hopkins, & Adam M Cambier for American
Academy of Assisted Reproductive Technology Attorneys &
Abigail Taylor, Gail Garinger, Brittany Williams, &
Andrea C. Kramer, Assistant Attorneys General, for the
Shannon Minter, of California, Marco J. Quina, & Emma S.
Winer for forty-two law professors & another.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
2014, the plaintiff, Karen Partanen, filed a complaint in the
Probate and Family Court seeking to establish legal parentage
of two young children. The complaint alleged that she and the
defendant, Julie Gallagher, had been in a committed,
nonmarital relationship between 2001 and 2013. Using in vitro
fertilization, and with Partanen's "full
acknowledgment, participation, and consent, " Gallagher
gave birth to the two children. Thereafter, Partanen and
Gallagher represented themselves publicly as the
children's parents, and jointly raised the children until
their 2013 separation. On the basis of these allegations,
Partanen's complaint sought a declaration of parentage
pursuant to, among other things, G. L. c. 209C, § 6 (a.)
(4) . That statute provides that "a man is presumed to
be the father of a child" born out of wedlock if
"he, jointly with the mother, received the child into
their home and openly held out the child as their
child." Concluding that Partanen could not be deemed a
presumed parent under G. L. c. 209C, § 6 (a.) (4),
because it was undisputed that she was not the children's
biological parent, a judge of the Probate and Family Court
dismissed the complaint for failure to state a claim upon
which relief can be granted. See Mass. R. Dom. Rel. P. 12 (b)
addressing Partanen's claims on direct appellate review,
we consider the question whether a person may establish
herself as a child's presumptive parent under G. L. c.
209C, § 6 (a.) (4), in the absence of a biological
relationship with the child. We conclude that she may. We
conclude further that, here, the assertions in Partanen's
complaint are sufficient to state a claim of parentage under
G. L. c. 209C (statute). Therefore, we reverse the judgment
of dismissal and remand the matter to the Probate and Family
Court for further proceedings.
facts are largely undisputed. The following facts are drawn
from the complaint, which we take as true in reviewing a
dismissal under Mass. R. Dom. Rel. P. 12(b)(6), with certain
minor, undisputed details drawn from elsewhere in the record.
See Schaer v. Brandeis Univ., 432 Mass.
474, 477 (2000).
February, 2001, while they were both living in Massachusetts,
Partanen and Gallagher entered into a committed relationship.
They moved to Florida in 2002, and, the following year,
together purchased a house there. In 2005, they decided to
start a family "with the shared intention that they
would both be parents to the resulting children." That
year, Partanen unsuccessfully underwent fertility treatment
using a sperm donor and in vitro fertilization. In 2007,
Gallagher underwent similar treatment "with the full
acknowledgment, participation, and consent of" Partanen.
This treatment was successful, and, with Partanen present,
Gallagher gave birth to a daughter, Jo.In 2011, Gallagher
again underwent fertility treatment, "with the full
acknowledgment, participation, and consent of"
Partanen. The treatment was successful, and, in
2012, Gallagher gave birth to a son, Ja.
Partanen did not formally adopt the children,  she
participated in raising them from the time of their birth.
Her participation included "waking for night-time
feedings, bathing, meal preparation, grocery shopping,
transportation to/from day care and school, staying home with
the children during times of illness, clothes shopping,
providing appropriate discipline as necessary, addressing
their developmental needs, [and] comforting" them.
Partanen was involved also "in all decisionmaking for
the children, " including in matters related to their
education and healthcare. Partanen "provided [the
children] consistent financial support, " and both
children referred to Partanen as "Mommy." Partanen
and Gallagher represented themselves publicly as the
children's parents in formal contexts such as at the
children's schools and for medical appointments, as well
as in their interactions with friends and family. They
vacationed as a family, shared expenses, purchased joint
assets, and sent family holiday cards.
2012, after the birth of Ja, Partanen and Gallagher returned
to Massachusetts with the children. In November, 2013, the
couple separated, and Partanen moved out of the family home.
Partanen filed an action to establish de facto parentage in
February, 2014. She requested visitation with the children
and shared legal custody. In September, 2015, a judge of the
Probate and Family Court ruled that Partanen was a de facto
parent of the children, issued orders regarding visitation,
and required her to pay child support.
October, 2014, Partanen filed the present action in the
Probate and Family Court "to establish [full legal]
parentage."In February, 2015, Gallagher's
motion to dismiss the complaint for "[f]ailure to state
a claim upon which relief can be granted, " Mass. R.
Dom. Rel. P. 12(b)(6), was allowed.