                IN THE SUPREME COURT, STATE OF WYOMING

                                   2014 WY 152

                                                    OCTOBER TERM, A.D. 2014

                                                           December 2, 2014

LP,

Appellant
(Respondent),

v.                                             S-14-0066

LF,

Appellee
(Petitioner).



                   Appeal from the District Court of Laramie County
                    The Honorable Thomas T.C. Campbell, Judge


Representing Appellant:
      Dona Playton, Interim Faculty Director; Danielle R. Cover, Faculty Supervisor;
      Brianne Phillips, Student Director; Michael J. Fitzgerald, Student Intern;
      University of Wyoming Legal Services Program, Laramie, Wyoming. Argument
      by Ms. Phillips.

Representing Appellee:
      No appearance

Representing Amicus Curiae National Association of Social Workers and the National
Association of Social Workers, Wyoming Chapter:
      Jessica Rutzick of Jessica Rutzick & Associates, P.C., Jackson, Wyoming


Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Appellee LF sought a judgment determining that Appellant LP was not the
biological father of KEP. Appellant claimed to be KEP’s actual and presumptive parent,
and that Mother’s lawsuit was untimely. He also claims to be entitled to parental rights
by virtue of de facto parentage or parentage by estoppel. The district court granted
Appellee’s petition to establish that Appellant was not KEP’s father, and Appellant
challenged that determination in this appeal. We affirm.

                                               ISSUES

[¶2]    Appellant presents a total of six issues, which we have distilled and rearranged.

      1.    Did the district court err in granting Appellee’s petition to prove that
Appellant was not KEP’s biological father under the Wyoming Parentage Act?

       2.    Did the district court err in not finding that Appellant was a de facto parent,
even if he was not KEP’s biological parent?

      3.      Did the district court err in not finding that Appellant was a parent by
estoppels, even if he was not KEP’s biological parent?

                                                FACTS

[¶3] The facts of this case are disputed, and its procedural history is confusing. 1 LF
(referred to as Mother because of the similarity of the parties’ initials in this confidential
case) is the mother of KEP, who is now ten years of age. LP, the Appellant, met Mother
in the Denver, Colorado area.

[¶4] At a hearing dealing generally with this issue, Appellant testified that he had a
sexual relationship with Mother during a time period when KEP could have been
conceived. Mother, on the other hand, testified that she was “five months pregnant and
showing” with KEP when she met Appellant. Genetic testing ultimately conducted and
stipulated into evidence found that there was a 0.00% probability that Appellant is KEP’s
biological father. The district court found as follows concerning the claim that Appellant
had a relationship with Mother at a time when he could be the father:


1
  A number of law students participating in the University of Wyoming Legal Services Program have
represented LP during these proceedings. Rule 9 of the Rules Governing the Wyoming State Bar and the
Authorized Practice of Law allows law students supervised by an attorney admitted to practice in
Wyoming to appear in cases in Wyoming courts. We mention this only to point out that the student
attorney who argued this case to us did not participate in the district court proceedings or appear on the
brief when it was filed.


                                                     1
             The Court finds, for instance, that [Appellant’s] assertion in
             his answer that the parties had sexual contact at or about the
             time of conception, was wholly unsupported by the evidence,
             and quite the contrary it is clear their relationship, dating and
             ultimately cohabitating, did not cover the period when he
             would have had to have had sexual access to the mother. If
             he knew, as it turns out he did, that he could not have been
             the father, he should not have plead [sic] it in his answer.

[¶5] It is undisputed, however, that Appellant was present when KEP was born, and
that he is listed as the father on the child’s birth certificate. The couple lived together
when KEP was born. Neither party knew who filled out a worksheet that led to the
issuance of the birth certificate. The parties agree that KEP was named after Appellant’s
twin brother and that he bears Appellant’s last name, and Mother did not deny giving
Appellant a ring inscribed with the word “Dad.”

[¶6] The parties disagree on the length of time that they lived together in the Denver
area, however. Appellant estimates it at twenty-one or twenty-two months, while Mother
estimates it at about eighteen months. They agree that they moved to Spokane with KEP
after living in Denver. Appellant estimates that they all lived together in Spokane for one
to two months, while Mother estimates the time period at a month. Appellant claims to
have paid most if not all of their living expenses during this time because he was the only
one working, while Mother denies that he was the sole financial provider.

[¶7] After they had lived in Washington for a month or two, the couple decided to take
a break from each other, which Appellant assumed would last for a couple of months.
Mother left with the child for parts unknown, and did not communicate with him after she
left. They never lived together after that separation.

[¶8] Appellant attempted without success to locate Mother and KEP through law
enforcement agencies for a time. Mother later explained that she and KEP had been in a
safe house in Longmont, Colorado for a week, and that they were then transferred to a
safe house in Cheyenne, where they remained until she rented an apartment there. The
record offers no explanation as to why they were staying in a safe house, which was
presumably a facility for women and children who were threatened with violence.

[¶9] At some point, by means not identified in the record, Appellant and Mother made
contact, and they and KEP met at the Cheyenne Walmart. Appellant bought things that
KEP needed at that store. He then moved to Cheyenne and rented an apartment, and after
four months moved to another apartment across the street from Mother. The child spent
time with his mother and Appellant as he chose, although the record does not quantify
how much time he spent with each.



                                             2
[¶10] This situation continued for about five years. The parties once again disagree as to
Appellant’s contribution to KEP’s support. He testified that he “supported” KEP, but did
not explain what or how much support was provided. He testified that Mother
contributed “very little” to the child’s care. Mother testified, on the other hand, that
Appellant “helped some, but not a lot” in paying KEP’s expenses during this time frame.

[¶11] Mother filed a “Petition to Disprove Father-Child Relationship, or In the
Alternative, Order Child Custody and Child Support” in Laramie County District Court
on August 12, 2011. The impetus for this filing is unclear, although it may have had
something to do with receipt of public assistance. In the petition Mother alleged that
Appellant and Mother did not have a relationship when KEP was conceived, and that she
was five months pregnant when she and Appellant began to live together. Appellant
timely responded and counterclaimed, contending that he and Mother did have a sexual
relationship at the time KEP was conceived. He asked the district court to determine that
he was the child’s biological father, and that it award him primary custody with
appropriate visitation for Mother.

[¶12] Although the record does not contain a transcript of it, the district court held a
hearing on March 6, 2012. On July 2, 2012, it entered an order finding that Appellant
had not acknowledged paternity as provided for by Wyo. Stat. Ann. § 14-2-602, and that
there was no presumption that he was KEP’s father under Wyo. Stat. Ann. § §14-2-
504(a)(v).2 This finding is important because the statute of limitations for a proceeding
to determine paternity when there is a presumptive father must be brought within a
reasonable time but no later than five years after the child is born. Over five years had
passed between the child’s birth at the end 2003 and the filing of the petition to disprove
paternity in 2011.

[¶13] However, a proceeding seeking to disprove paternity can be brought at any time if
the putative father did not cohabitate or engage in sexual intercourse with the mother at
the probable time of conception, or if the putative father did not openly hold the child out
as his own. Wyo. Stat. Ann. § 14-2-807(a) and (b) (LexisNexis 2013).3 Mother’s



2
  “A man is presumed to be the father of a child if . . . (v) [f]or the first two years of the child’s life, he
resided in the same household with the child and openly held the child out as his own.” Wyo. Stat. Ann.
§ 14-2-504(a)(v) (LexisNexis 2013).
3
  This statute states:

                 (a) Except as otherwise provided in subsection (b) of this section, a
                 proceeding brought by a presumed father, the mother, or another
                 individual to adjudicate the parentage of a child having a presumed
                 father shall be commenced within a reasonable time after obtaining
                 knowledge of relevant facts, but in no event later than five (5) years after
                 the child’s birth.


                                                       3
petition would therefore be timely only if Appellant was not KEP’s presumed father. The
Court also ordered a paternity test under Wyo. Stat. Ann. § 14-2-702.4

[¶14] On August 4, 2012, Mother physically attacked Appellant in his apartment, and
KEP unfortunately became involved in the affray. Appellant obtained a domestic
violence protection order5 under Wyo. Stat. Ann. § 35-21-101 et seq., but left Cheyenne
for Tekoa, Washington with KEP without consulting Mother or seeking court approval
nonetheless. The paternity test results referred to above were filed on August 7, 2012.
On October 10, 2012, Mother filed a motion seeking an order awarding her temporary
custody of KEP and requiring Appellant to return the child to Wyoming immediately.




                (b) A proceeding seeking to disprove the father-child relationship
                between a child and the child’s presumed father may be maintained at
                any time if the court determines that:
                        (i) The presumed father and the mother of the child neither
                cohabited nor engaged in sexual intercourse with each other during the
                probable time of conception; and
                        (ii) The presumed father never openly held out the child as his
                own.

Wyo. Stat. Ann. § 14-2-807. This statute might have barred Appellant’s claim, but it was not raised by
Mother.
4
  Section 14-2-702 provides in pertinent part as follows:

                (a) Except as otherwise provided in this article and article 8 of this act,
                the court shall order the child and other designated individuals to submit
                to genetic testing if the request for testing is supported by the sworn
                statement of a party to the proceeding:
                        (i) Alleging paternity and stating facts establishing a reasonable
                probability of the requisite sexual contact between the individuals; or
                        (ii) Denying paternity and stating facts establishing a possibility
                that sexual contact between the individuals, if any, did not result in the
                conception of the child.

Wyo. Stat. Ann. § 14-2-702 (LexisNexis 2013). The pleadings containing the required allegations are not
sworn, and testimony leading to the order of July 2, 2012 is not in the record. However, as will be
discussed more fully below, we presume that the district court had adequate evidence before it to order as
it did in the absence of a record to the contrary. Golden v. Guion, 2013 WY 45, ¶¶ 4-5, 299 P.3d 95, 96-
97 (Wyo. 2013).
5
  The order and application therefore were referred to in the record, but neither is actually part of it. The
range of relationships which can permit an alleged victim to be classified as a “household member” for
purposes of obtaining a protective order are quite broad, including “[p]ersons formerly living with each
other” and “persons who . . . have been in a dating relationship.” Wyo. Stat. Ann. § 35-21-102(a)(iv)(D)
and (H) (LexisNexis 2013).


                                                      4
[¶15] In an Amended Pretrial Memorandum6 filed on January 23, 2013 in anticipation of
a hearing on the merits, Appellant identified the issues to be determined as whether
Mother and he had entered into a common law marriage in Colorado, whether he was the
presumptive father under § 14-2-504 because he and Mother had lived together for two
years after KEP’s birth, and whether he should have custody if he was the presumptive
father under the statute. Appellant did not at that point claim that he was a parent by
estoppel or a de facto parent under American Law Institute (ALI) Principles of the Law
of Family Dissolution (Principles).

[¶16] The district court held an evidentiary hearing to resolve any factual issues that
same day. At the hearing, Appellant’s counsel stipulated to the accuracy and
admissibility of the genetic test the district court had ordered, and it was received in
evidence. The parties testified as generally described above. There were numerous
conflicts in the testimony, as we have noted. At no time during the hearing did Appellant
claim that he was a parent by estoppel or a de facto parent under ALI Principles. He
argued instead that he had entered into a common law marriage with Mother in Colorado,
or that alternatively the district court had the equitable power to shorten the two-year
period required to become a presumptive parent under Wyo. Stat. Ann. § 14-2-504(a)(v).
The district court took the matter under advisement and gave the parties an opportunity to
file additional briefs concerning equitable grounds for relief.

[¶17] On February 6, 2013, Appellant filed a pleading entitled “Motion Pursuant to Rule
60(b)(5) [sic] Modify or Rescind Order Based on Principles of Equitable Estoppel,”
which it supported with a brief. This pleading asked the district court not to enforce the
order for genetic testing which had been entered almost seven months earlier, after the
results had been received and entered into evidence at the January hearing. For the first
time we can find in this record, he referred to the ALI Principles of the Law of Family
Dissolution in the brief supporting this motion, stating that:

                The doctrine of equitable estoppel and W.[R.C.P.] Rule
                60(b)(5) provide the Court with the equitable power and
                authority to relieve the Respondent from the Order. This
                proposed action allows the Court to reexamine issues that are
                silenced due to an order that is no longer equitable. If the
                Court assumes its equitable authority it can consider
                alternative theories regarding the parental rights of the
                Respondent. The Court may choose to recognize [LP] as a
                presumptive or acknowledged father or parent by estoppel
6
  The original pretrial memo filed by L.P., that filed by Mother, and the scheduling order for the
proceeding to which they pertain are not in the record. Based upon events at the hearing, and the order
ultimately entered, we infer that the scheduling order set a hearing at which the merits of Mother’s
original petition to disprove L.P.’s paternity were to be determined, and we can see that the hearing was
actually held because a transcript was included in the record.


                                                    5
               and a de facto parent, or both in accordance with those
               definitions found in the American Law Institute (ALI):
               Principles of the Law of Family Dissolution.

[¶18] However, Appellant argued that the district court (not Mother) should be estopped
from enforcing the order because he earlier testified that he had held himself out to be the
child’s father since birth and had maintained a relationship with KEP.7 Neither the brief
nor the motion contain any analysis of how the evidence supported a claim of parentage
by estoppel or de facto parentage.

[¶19] On June 4, 2013, Mother filed a renewed motion for an order awarding her
custody and ordering Appellant to return KEP to Wyoming without delay. In an
amended response to that motion filed on June 27, 2013, five months after the hearing,
Appellant for the first time quoted the ALI Principles on de facto parentage and
parentage by estoppel.

[¶20] On August 8, 2013, the court entered an order requiring Appellant to return KEP
to Mother in Wyoming, but the order also indicated that the court planned to hold a
hearing five days before school began in Washington State to determine whether the
child would return to Appellant in Washington or remain with Mother in Wyoming after
that date. If that hearing was held, there is no transcript or order resulting from it in the
record. On November 27, 2013, the district court entered a decision letter holding as
follows:

     As the court had previously decided, Appellant was not the presumed parent of
      KEP under the Wyoming Parentage Act. It noted that the paternity test in fact
      proved that he was not in fact KEP’s biological parent. It found his claim that he
      and Mother had a sexual relationship at a time when KEP could have been
      conceived to be wholly unsupported by the evidence.

     Appellant had hardly acted equitably himself in taking the child to Washington,
      but in any event there was no equitable basis to deviate from the statutory
      elements required to establish that he was presumed to be KEP’s parent.

     The evidence of a common law marriage in Colorado was “woefully insufficient.”

     Mother’s petition to disprove Appellant’s parentage was timely because he was
      not the presumed father.


7
  This is an unusual definition of estoppel, which generally prevents a party “from asserting a claim or
right that contradicts what one has said or done before or what has been legally established as true.”
Black’s Law Dictionary 667 (10th ed. 2014).


                                                    6
     Neither the parties nor the judge had been able to identify any proposition of law
      that would allow the court to declare a person to be KEP’s father on equitable
      grounds.

     It was unnecessary to evaluate the best interests of the child, because Appellant
      was not KEP’s biological father and he could not be awarded custody or visitation.

[¶21] An order granting Mother’s petition to disprove Appellant’s father-child
relationship was entered on January 6, 2014. Although the Rule 60(b) motion was not
expressly denied, the tenor of the order makes it clear that the relief was not granted. The
ruling did not mention de facto parentage or parentage by estoppel; perhaps this was
because those theories were presented late.

[¶22] This appeal was timely perfected. Mother did not appear or file a brief. We
permitted the National Association of Social Workers and the Wyoming Chapter of that
organization to file an amicus brief.

[¶23] On April 18, 2014, Appellant filed a motion asking this Court to take judicial
notice of certain pleadings in Wyoming guardianship proceedings related to KEP. That
motion was granted. One of the documents of which we took notice is a stipulated order
appointing Appellant to be KEP’s guardian. In it, the parties stipulated that Mother “is
unable to provide the necessary care for KEP and has requested that [Appellant] take
guardianship of the minor child in order that the minor child may relocate to Washington
with the [Appellant] and attend school and reside there.”8

                                         DISCUSSION

Statutory Presumption of Paternity

[¶24] We address this issue first, because if Appellant is entitled to be adjudicated
KEP’s parent under existing law, we need not address the other theories he raises. We
have recently summarized the standard of review applicable when a case has been tried to
the district court:

               The factual findings of a judge are not entitled to the limited
               review afforded a jury verdict. While the findings are
               presumptively correct, the appellate court may examine all of
               the properly admissible evidence in the record. Due regard is
               given to the opportunity of the trial judge to assess the

8
 We agree with Appellant that the order awarding him guardianship does not render the issues in this
case moot. A guardianship may be terminated when no longer necessary, and it is clearly not the
equivalent of holding parental rights. Wyo. Stat. Ann. § 3-3-1101(v) (LexisNexis 2013).


                                                  7
              credibility of the witnesses, and our review does not entail re-
              weighing disputed evidence. Findings of fact will not be set
              aside unless they are clearly erroneous. A finding is clearly
              erroneous when, although there is evidence to support it, the
              reviewing court on the entire evidence is left with the definite
              and firm conviction that a mistake has been committed. In
              considering a trial court’s factual findings, we assume that the
              evidence of the prevailing party below is true and give that
              party every reasonable inference that can fairly and
              reasonably be drawn from it. We do not substitute ourselves
              for the trial court as a finder of facts; instead, we defer to
              those findings unless they are unsupported by the record or
              erroneous as a matter of law. The district court’s conclusions
              of law are reviewed de novo.

Graybill v. Lampman, 2014 WY 100, ¶ 25, 332 P.3d 511, 519 (Wyo. 2014) (quoting
Helm v. Clark, 2010 WY 168, ¶ 6, 244 P.3d 1052, 1056 (Wyo. 2010)).

[¶25] In its November 27, 2013 decision letter, the district court indicated that it had
determined that Appellant was not presumed to be KEP’s biological father following a
hearing on March 6, 2012, but that the order implementing the oral ruling of that date was
not approved and entered until July 2, 2012. If the hearing that resulted in the order was
reported, no transcript of it is in the record.

                      We have long held that appellants must provide this
              Court with a record sufficient to allow adequate appellate
              review. When no transcript or any other proper substitute
              record of the facts of a case is included in the record on
              appeal, we presume that there were no irregularities in the
              district court’s judgment, and that it was reasonably based on
              competent and sufficient evidence. Golden v. Guion, 2013
              WY 45, ¶¶ 4-5, 299 P.3d 95, 96-97 (Wyo. 2013); Chancler v.
              Meredith, 2004 WY 27, ¶ 5, 86 P.3d 841, 842 (Wyo. 2004);
              Stadtfeld v. Stadtfeld, 920 P.2d 662, 664 (Wyo. 1996).

Roberts v. Locke, 2013 WY 73, ¶ 27, 304 P.3d 116, 122 (Wyo. 2013).

[¶26] Appellant must therefore rely upon a W.R.C.P. 60(b)(5) motion which is
somewhat difficult to understand, but appears to argue that the order requiring paternity
testing and finding that he was not a presumed parent was “no longer equitable.” As
already noted, this motion was filed after paternity testing was completed, after the
district court held an evidentiary hearing on the issues Appellant identified in his pretrial



                                              8
memorandum, and after his counsel stipulated to the accuracy and admissibility of the
paternity test at the evidentiary hearing.

                     Review of a court’s decision on a Rule 60(b) motion is
              confined to a determination of whether the court abused its
              discretion, and it is the movant’s burden to bring his cause
              within the claimed grounds of relief and to substantiate these
              claims with adequate proof. We will reverse an order denying
              relief under Rule 60(b) only if the trial court clearly was
              wrong.

Campbell v. Hein, 2013 WY 131, ¶ 8, 311 P.3d 165, 167 (Wyo. 2013) (citation omitted).

[¶27] Appellant argues that he should be presumed to be KEP’s father because he
“substantially complied” with the statutory requirements of Wyo. Stat. Ann. § 14-2-
504(a)(v). As noted in footnote 2, that statute provides as follows:

              (a)    A man is presumed to be the father of a child if:

                                          .   .   .

                     (v) For the first two (2) years of the child’s life, he
              resided in the same household with the child and openly held
              out the child as his own.

Wyo. Stat. Ann. § 14-2-504(a)(v).

[¶28] Appellant concedes that he and Mother lived together for only twenty-one months,
which is of course less than two years, but argues that the district court should have
overlooked the shortfall and presumed him to be KEP’s parent. He argues that Mak-M v.
SM, 854 P.2d 64, 68 (Wyo. 1993), requires only substantial compliance with the
requirements of the Wyoming Parentage Act. Mak-M dealt with the rights of a presumed
parent in a case in which the district court found that the mother of the child involved did
not file her petition to disprove paternity “within a reasonable time.” Id. at 66. It did not
deal with the very specific period identified by the legislature.

[¶29] Appellant evidently hoped that a presumption of paternity would render Mother’s
petition to prove that he was not the father untimely. However, the statute only creates a
presumption, which “imposes on the party against whom it is directed the burden of
proving the nonexistence of the presumed fact is more probable than its existence.”
Wyoming Rule of Evidence 301. Appellant stipulated to the accuracy and admissibility
of a paternity test which conclusively proved that he could not be KEP’s biological father
and which therefore rebutted the presumption beyond any doubt. We therefore affirm the


                                              9
district court’s implicit denial of that aspect of the Rule 60(b)(5) motion without further
analysis.

De Facto and Equitable Parentage

[¶30] Appellant points out that the traditional biologically-based definition of parentage
is undergoing a transformation in other states. Some jurisdictions have given parental
rights to individuals who are not biological parents through application of the in loco
parentis doctrine, as psychological parents, or as de facto parents or parents by estoppel.9
For an overview, see Jeff Atkinson, Shifts in the Law Regarding the Rights of Third
Parties to Seek Visitation and Custody of Children, 47 Fam. L.Q. 1 (2013). Appellant’s
brief focuses on de facto parentage, although it also claims that he is a parent by estoppel
under the ALI Principles.

[¶31] The first issue we must address is whether Appellant preserved these issues for
review. We have held that we will not address issues which were not properly raised in
the district court. Courtenay C. and Lucy Patten Davis Found. v. Colorado State Univ.
Research Found., 2014 WY 32, ¶ 36, 320 P.3d 1115, 1126 (Wyo. 2014) (quoting In re
Guardianship of Lankford, 2013 WY 65, ¶ 28, 301 P.3d 1092, 1101 (Wyo. 2013)).
Appellant claims that he did raise them sufficiently in the Rule 60(b)(5) motion referred
to above, and in the response to a renewed request for an order requiring him to return
KEP to Wyoming.

[¶32] The Rule 60(b)(5) motion contended that the ruling calling for a paternity test was
“no longer equitable.” The order in question only determined that Appellant was not
KEP’s presumptive father and required genetic testing. It was not a final order, as the
court intended to and did in fact hold a hearing to determine whether Appellant and
Mother were in a common law marriage, consider whether there was some equitable
basis to deviate from the strict requirements of the Wyoming Parentage Act, and
presumably to consider the results of the paternity test. Platt v. Platt, 2014 WY 142, ¶
27, __ P.3d __, __ (Wyo. 2014) (tentative or incomplete action is not final). The district
court had not yet issued a ruling based on that hearing when the motion was filed.

[¶33] The motion can more accurately be considered one for reconsideration or
consideration of another theory before judgment. Steranko v. Dunks, 2009 WY 9, ¶ 6,
199 P.3d 1096, 1097 (Wyo. 2009) (prejudgment motions to reconsider, whether
denominated as such or not, are valid in Wyoming).

[¶34] The district court described Appellant’s theories as “evolving,” and we certainly
agree with that description. The theories were raised in the district court, but belatedly

9
 Although the elements of in loco parentis, psychological parentage, and de facto parentage are slightly
different, we will occasionally refer to them collectively as de facto parentage.


                                                    10
and not in a way conducive to fairness to the opposing party or in a manner calculated to
assure that the district judge had a full opportunity to consider them. The theories should
have been identified in pretrial documents, and the evidence presented at the January 23,
2013 hearing should have been tailored to their elements and explained through cogent
argument, which did not occur. The record is barren of any indication that Appellant’s
counsel requested further hearings to present or explain evidence to support these theories
after January 23, 2013. Mother’s attorney presented evidence to address the issues
Appellant did identify prior to the hearing.

[¶35] We would be justified in not addressing the merits of these arguments. However,
because the district court did not render a final decision until after the issues were raised,
and because it gave Appellant leave to address equitable grounds for relief in
supplemental briefing after the January 23 hearing, we will do so, but with the warning
that such leniency cannot be expected in every case. 10

       De Facto Parentage

[¶36] De facto parents are defined in § 2.03 of the ALI Principles of the Law of Family
Dissolution:

               A de facto parent is an individual other than a legal parent or
               a parent by estoppel who, for a significant period of time not
               less than two years, (i) lived with the child and, (ii) for
               reasons primarily other than financial compensation, and with
               the agreement of a legal parent to form a parent-child
               relationship, or as a result of a complete failure or inability of
               any legal parent to perform caretaking functions, (A)
               regularly performed a majority of the caretaking functions for
               the child, or (B) regularly performed a share of caretaking
               functions at least as great as that of the parent with whom the
               child primarily lived.

ALI Principles of the Law of Family Dissolution § 2.03 (2002 updated 2014).

[¶37] Other states have adopted statutes allowing stepparents or siblings to seek
visitation. Atkinson, supra, at 7-8. The Washington Supreme Court judicially adopted
de facto parentage in In re Parentage of L.B., 122 P.3d 161 (Wash. 2005). In that case,
two women, Page Britain and Sue Carvin, were in a committed relationship. They
10
   We also note that the facts were poorly developed and not correlated to the criteria for de facto
parentage under the ALI Principles, probably because Appellant’s counsel did not appear to be asserting
de facto parentage at the January 23, 2013 hearing. Noticeably lacking is any evidence of the amount of
support Appellant provided, a time period of less than two years when Mother and Appellant lived
together with KEP, and clarity as to the arrangement after the parties moved to Cheyenne.


                                                   11
decided to have a child. Britain was artificially inseminated and delivered L.B. Carvin
took an active role in parenting L.B. Britain and Carvin’s relationship ended
acrimoniously when L.B. was six. Id. at 164.

[¶38] The Washington Supreme Court held that Carvin was entitled to rights as a de
facto parent if she could prove the following:

              (1) [T]he natural or legal parent consented to and fostered the
              parent-like relationship, (2) the petitioner and the child lived
              together in the same household, (3) the petitioner assumed
              obligations of parenthood without expectation of financial
              compensation, and (4) the petitioner has been in a parental
              role for a length of time sufficient to have established with the
              child a bonded, dependent relationship, parental in nature.

Id. at 176. The Washington Court relied upon an earlier Wisconsin decision employing
basically the same criteria. Id. at 173-74 (citing In re Custody of H.S.H.-K., 533 N.W.2d
419 (Wis. 1995)).

[¶39] Justice Johnson dissented, joined by Justice Sanders, contending that the decision
was an unconstitutional incursion on the rights of the adoptive mother, and that it violated
a “detailed and complete statutory scheme” and created a new method of determining
parentage by judicial fiat. 122 P.3d at 181 (Johnson, J., dissenting). The dissent
concluded as follows:

                     The court properly decided not to act as a legislature in
              In re Dependency of J.H. [815 P.2d 1380 (Wash. 1991)], but
              unfortunately today the same restraint is not shown. This
              court should have continued to follow the long precedent and
              declined to usurp the legislature’s role.

                     The majority wishes to act with the wisdom of
              Solomon in not only implementing but making the law in this
              sensitive family law area. Solomon’s famous case with two
              women claiming the same baby had a different point,
              however, badly misapprehended by the majority. Solomon
              threatened to cut the baby in half in order to determine the
              real mother, to whom he restored full custody. 1 Kings 3:16–
              28. The court today holds an actual division more wise and
              sends the case and the child to lower courts for that division.
              Poor little L.B.

122 P.3d at 184.


                                              12
[¶40] Other courts have reached the same result as the majority of the Washington
Supreme Court did in L.B. See, e.g., In re Clifford K., 619 S.E.2d 138 (W.Va. 2005);
Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005); C.E.W. v. D.E.W., 845 A.2d 1146
(Me. 2004); Riepe v. Riepe, 91 P.3d 312 (Ariz. Ct. App. 2004); In re E.L.M.C., 100 P.3d
546 (Colo. Ct. App. 2004); Rubano v. DiCenzo, 759 A.2d 959 (R.I. 2000); LaChapelle v.
Mitten, 607 N.W.2d 151 (Minn. Ct. App. 2000); E.N.O. v. L.M.M., 711 N.E.2d 886
(Mass. 1999); Laspina–Williams v. Laspina–Williams, 742 A.2d 840 (Conn. 1999); Jones
v. Fowler, 969 S.W.2d 429 (Tex. 1998).

[¶41] Still others have reached the same result by application of in loco parentis or the
concept of psychological parentage. See In re Parentage of A.B., 837 N.E.2d 965 (Ind.
2005); T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001) (recognizing the status of in loco
parentis); V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000) (recognizing the status of
“psychological parent”); In re T.L., 1996 WL 393521 (Mo. Cir. May 7, 1996) (adopting
the doctrine of “equitable parent”); In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis.
1995) (permitting a person in a “parent-like” relationship with the child to petition for
visitation); Carter v. Brodrick, 644 P.2d 850 (Alaska 1982) (permitting a non-parent with
status of a psychological parent or in loco parentis to petition for custody).11

[¶42] The courts in both categories have held that legislative definitions of parentage
based on a biological relationship or adoption do not preclude recognition of de facto
parentage, and they emphasize the harm which can be done to a child by abruptly
terminating a relationship with someone who has cared for him as a parent would. See In
re E.L.M.C., supra.

[¶43] We acknowledge the risk of that harm in this case. Although Appellant’s behavior
has not always been ideal, and he may in desperation have made claims that could not be
true, he has been devoted to KEP, who regards him as his father. The amicus brief
provides us with scholarly authority indicating that preservation of attachments by
children to those who have cared for them is critical to their healthy development. It also
points out that scholarly literature indicates that these bonds develop without regard to
biological ties. See, e.g., National Research Council and Institutes of Medicine, From
Neurons to Neighborhoods: The Science of Early Childhood Development, at 233-34
(Jack P. Shonkoff and Deborah A. Phillips eds., 2000). The proposition makes sense, and
we have little doubt that it is true.

[¶44] On the other hand, the Delaware Supreme Court declined to recognize de facto
parentage, holding that creating a new form of parent-child relationship required action
11
  Non-biological parents have also been granted status as de facto parents based upon the language of
coparenting agreements. See, e.g., Frazier v. Goudschaal, 295 P.3d 542 (Kan. 2013) (enforcing a
coparenting agreement entered into by two women, one of whom gave birth to children with assisted
reproductive technology, when the other was described as a “de facto parent” in the agreement).


                                                  13
by the legislature. Smith v. Gordon, 968 A.2d 1 (Del. 2009), superseded by statute 13
Del. C. § 8-201 (2010). The parties in that case were also two women who had been
involved in a long-term committed romantic relationship. They decided to adopt a child
from Kazackstan. Because the laws of that country did not permit two women to adopt
the same child, Smith became the adoptive parent, although Gordon participated in the
adoption process and cared for the child. Gordon planned to adopt, but she was led to
believe that she would have to care for the child for a year before she could do so under
Delaware law. The parties separated, evidently also acrimoniously, before Gordon
initiated adoption proceedings. Id. at 3. The trial court found that Gordon had standing
to seek de facto parentage and that she was entitled to legal and physical custody of the
child. Id. at 4.

[¶45] The Delaware Supreme Court reversed. It discussed the provisions of the
Delaware Uniform Parentage Act, which is similar to Wyoming’s. It ultimately
concluded that the Delaware General Assembly had adopted a comprehensive parentage
scheme which was based upon a biological relationship to the child or adoption. Id. at
14-15. It therefore held that Gordon lacked standing as a legal parent because the Act did
not define her as such, although it noted that the legislature could certainly approve de
facto parentage if it wished to do so. Id. at 16. Other courts have reached the same
conclusion. Moreau v. Sylvester, 95 A.3d 416, 423 (Vt. 2014); In re Scarlett Z.-D., 975
N.E.2d 755, 772-74 (Ill. App. 2012), appeal denied, judgment vacated, 992 N.E.2d 3 (Ill.
2013); In re Scarlett Z.-D, 11 N.E.3d 360 (Ill. App. 2014);12 Jones v. Barlow, 154 P.3d
808, 818-19 (Utah 2007); Alison D. v. Virginia M., 572 N.E.2d 17, 29 (N.Y. 1991).

[¶46] In response to Smith v. Gordon, the Delaware General Assembly soon took up the
challenge and enacted a definition of de facto parentage very similar to that adopted by
the Washington Supreme Court in In re Parentage of L.B., supra. The Delaware Supreme
Court gave full effect to the General Assembly’s decision in Smith v. Guest, 16 A.3d 920
(Del. 2011).13

[¶47] We find the reasoning of the Delaware Supreme Court in Smith v. Gordon more
persuasive than that of the Washington Supreme Court in In re Parentage of L.B. The
version of the Uniform Parentage Act adopted by the Wyoming Legislature indicates that

12
   The Illinois Supreme Court recognized the equitable adoption after the intermediate court of appeal
rendered its first decision, and therefore the Supreme Court vacated that decision and remanded. On
remand, the intermediate court of appeal continued to decline to recognize de facto, psychological or in
loco parentis rights, but remanded to the trial court to develop a record and rule on whether equitable
adoption would apply in this case involving a Slovakian adoption by an unmarried couple.
13
   The parties to Smith v. Guest were the same as in Smith v. Gordon; evidently Gordon’s last name
changed between the two decisions. The legislation passed by the Delaware General Assembly provided
that the law would be applied retroactively, and that “[n]o Court decision based upon a finding that
Delaware does not recognize de facto parent status shall have collateral estoppel or res judicata effect.”
Smith v. Guest, 16 A.3d at 924. The court upheld this provision.


                                                     14
the “‘parent-child relationship’ means the legal relationship between a child and a parent
of the child. The term includes the mother-child relationship and the father-child
relationship.” Wyo. Stat. Ann. § 14-2-402(a)(xiii). Section 14-2-501 defines those
relationships as follows:

             (a) The mother-child relationship is established between a
             woman and a child by:

                    (i) The woman’s having given birth to the child;
                    (ii) An adjudication of the woman’s maternity; or
                    (iii) Adoption of the child by the woman.

             (b) The father-child relationship is established between a man
             and a child by:

                    (i) An unrebutted presumption of the man’s paternity
             of the child under W.S. 14-2-504;
                    (ii) An effective acknowledgment of paternity by the
             man under article 6 of this act, unless the acknowledgment
             has been rescinded or successfully challenged;
                    (iii) An adjudication of the man’s paternity;
                    (iv) Adoption of the child by the man; or
                    (v) The man’s having consented to assisted
             reproduction by his wife under article 8 of this act which
             resulted in the birth of the child.

Wyo. Stat. Ann. § 14-2-501 (LexisNexis 2013).

[¶48] These criteria are comprehensive, and as we discussed above, could in fact have
resulted in Appellant being adjudicated as KEP’s father even though he was not the
biological father if he had met all of the statutory requirements to be a presumed parent,
and if a petition to disprove parentage was not timely filed. We also note that the
Wyoming Legislature adopted the Wyoming Parentage Act in 2003. 2003 Wyo. Sess.
Laws ch. 93, § 1 et seq. This was not only after some of the cases relying upon the
doctrines of in loco parentis or psychological parentage were decided, but also after the
American Law Institute adopted the Principles of the Law of Family Dissolution in 2000
and first published the Principles in 2002.

[¶49] We presume that the legislature has acted in a thoughtful and rational manner with
full knowledge of existing law when it enacts a statute. DiFelici v. City of Lander, 2013
WY 141, ¶ 31, 312 P.3d 816, 824 (Wyo. 2013) (citing Redco Constr. v. Profile Prop.,
2012 WY 24, ¶ 37, 271 P.3d 408, 418 (Wyo. 2012)). We must conclude that the
legislature defined the mother-child and father-child relationships as it did advisedly.


                                             15
[¶50] We are mindful that the Washington Supreme Court relied upon a statute
somewhat similar to one enacted by our legislature, which preserves Wyoming courts’
power to apply the common law:

                          The common law of England as modified by judicial
                  decisions, so far as the same is of a general nature and not
                  inapplicable, and all declaratory or remedial acts or statutes
                  made in aid of, or to supply the defects of the common law
                  prior to the fourth year of James the First (excepting the
                  second section of the sixth chapter of forty-third Elizabeth,
                  the eighth chapter of thirteenth Elizabeth and ninth chapter of
                  thirty-seventh Henry Eighth) and which are of a general
                  nature and not local to England, are the rule of decision in this
                  state when not inconsistent with the laws thereof, and are
                  considered as of full force until repealed by legislative
                  authority.

Wyo. Stat. Ann. § 8-1-101 (LexisNexis 2013).14 The Washington court found the
authority granted by its version of this statute sufficient to permit it to “fill interstices that
legislative enactments do not cover,” and that it therefore had authority to recognize de
facto parentage. In re Parentage of L.B., 122 P.3d at 166-68.

[¶51] Our statutes are, of course, not identical to those of Washington, but when we
review the involvement of our legislature in the parent-child relationship, we do not find
a gap of sufficient size to permit us to adopt the de facto parent doctrine. The legislature
has acted extensively to define the parent-child relationship and the relationships of
children with those who are not their legal parents by setting the requirements for
adoption (Wyo. Stat. Ann. §§ 1-22-101 et seq.); establishing support requirements for
legal parents (§ 20-2-304); defining the rights of grandparents and caregivers (§§ 20-7-
101, -102); providing for guardians of minor children (§§ 3-2-101 et seq.); providing
measures for the protection of children from abuse and neglect and for children in need of
supervision (§ 14-3-401 et seq. and § 14-6-401 et seq.); and setting both the procedure
and grounds for termination of parental rights (§§ 14-2-308 et seq.) We have in the past

14
     Washington’s version of this statute provides:

                  The common law, so far as it is not inconsistent with the Constitution
                  and laws of the United States, or of the state of Washington nor
                  incompatible with the institutions and condition of society in this state,
                  shall be the rule of decision in all the courts of this state.

Wash. Rev. Code 4.04.010.



                                                       16
declined to use common law powers to modify relationships on which the legislature has
acted. In re Roberts’ Estate, 58 Wyo. 438, 467-68, 133 P.2d 492, 503 (1943) (declining
to recognize common law marriage in light of the statutory provisions governing
marriage in this state); In re Estate of Scherer, 2014 WY 129, ¶ 21, 336 P.3d 129, 135
(Wyo. 2014) (declining to recognize equitable adoption in light of provision of the
Wyoming Probate Code).

[¶52] There are also practical problems more suited to the legislative process than the
time-consuming case-by-case method the courts would be required to employ to define
the rights and duties of the parties:

    It is not clear how recognizing de facto parentage would affect a noncustodial
     biological parent’s rights. In this case, the biological father was not even given
     notice of these proceedings according to the record. The record does reflect that
     he has never been a parent to KEP, and Appellant, to his credit, has acted in that
     capacity since KEP was born. However, all cases will not be so clear. The de
     facto parentage cases do not tell us how a de facto parent’s rights would interact
     with those of a biological parent. On the other hand, the United States Supreme
     Court has significantly limited the circumstances in which a grandparent can
     obtain visitation over a biological parent’s objection due to the fundamental nature
     of the rights of a biological parent. Troxel v. Granville, 530 U.S. 57, 71, 120 S.Ct.
     2054, 2063, 147 L.Ed.2d 49 (2000). The same issues arise in this context.

    The extent of the rights to be obtained must be determined. The Wyoming
     Legislature has limited the rights of grandparents and caregivers to visitation. The
     cases cited above allow a de facto parent to obtain custody if the court deems it to
     be in the child’s best interest, which could limit a biological parent to visitation
     with the child.

    The ALI adopted a minimum time frame for de facto parentage to arise, while L.B.
     did not.

    Evidently there could be more than one de facto parent if the child’s legal parent
     has multiple relationships during his minority. See Atkinson, supra, at 16. The
     interaction between individuals holding those rights and biological parents needs
     to be governed by some objective criteria.

    The case law does not reflect how and for what reasons de facto parentage could
     be terminated. We presume that a de facto parent, like a biological parent, can
     engage in abuse or neglect sufficient to justify severing the relationship.




                                            17
    De facto parentage contemplates that a non-custodial de facto parent would be
     obligated to pay child support. It is difficult to anticipate how the duty to support
     a child would be apportioned between a non-custodial biological parent and a de
     facto parent.

[¶53] An Illinois intermediate appellate court summed up its reasons for declining to
recognize de facto parentage aptly:

                     While we are not unsympathetic to Jim’s position, or
             indeed, to Scarlett’s situation (especially having read the
             amicus brief submitted by the Family Institute at
             Northwestern University, et al.), not only would it be
             inappropriate for us to ignore existing Illinois law, but our
             doing so would likely be fraught with unintended
             consequences. Legal change in this complex area of social
             significance must be the product of careful, extensive policy
             debate, sensitive not only to the evolving realities of
             nontraditional families and the needs of the persons within
             those families, not the least of whom are the children, but also
             to parents’ fundamental liberty interest embodied in the
             superior rights doctrine and its restriction of the ability of the
             state to interfere in family matters. In short, the
             comprehensive legislative solution demanded here must be
             provided by our General Assembly.

In re Scarlett Z.-D., 975 N.E.2d at 772. We also decline to recognize de facto parentage,
instead deferring to the Wyoming Legislature to recognize and define that relationship if
it wishes to do so.

      Parentage by Estoppel

[¶54] The elements of parentage by estoppel are also set forth § 2.03 of ALI Principles:

             (1) Unless otherwise specified, a parent is either a legal
             parent, a parent by estoppel, or a de facto parent. (a) A legal
             parent is an individual who is defined as a parent under other
             state law. (b) A parent by estoppel is an individual who,
             though not a legal parent, (i) is obligated to pay child support
             under Chapter 3; or (ii) lived with the child for at least two
             years and (A) over that period had a reasonable, good-faith
             belief that he was the child’s biological father, based on
             marriage to the mother or the actions or representations of the
             mother, and fully accepted parental responsibilities consistent


                                              18
             with that belief, and (B) if some time thereafter that belief no
             longer existed, continued to make reasonable, good-faith
             efforts to accept responsibilities as the child’s father, or (iii)
             lived with the child since the child’s birth, holding out and
             accepting full and permanent responsibilities as parent, as part
             of a prior co-parenting with the child’s legal parent (or, if
             there are two legal parents, both parents), to raise a child
             together each with full parental rights and responsibilities,
             when the court finds that recognition of the individual as a
             parent is in the child’s best interests; or (iv) lived with the
             child for at least two years, holding out and accepting full and
             permanent responsibilities as a parent, pursuant to an
             agreement with the child’s parent (or, if there are two legal
             parents, both parents), when the court finds that recognition
             of the individual as a parent is in the child’s best interest.

ALI Principles, supra, § 2.03 (emphasis in original). Although the presentation of this
claim to the trial court suffers from the same problems as the de facto parentage claim,
we will consider it.

[¶55] We recognize that parentage by estoppel may be a somewhat more manageable
doctrine than de facto parentage because there is probably no realistic possibility that
more than one person could reasonably believe himself to be the parent of a child and live
in the same home for two years. However, we will decline to adopt the doctrine for the
same reasons we declined to recognize de facto parentage.

[¶56] In addition, we note that the legislature adopted something similar to parentage by
estoppel when it enacted the Wyoming Parentage Act, which creates criteria for
presumptive parentage. We believe that in doing so it preempted the field. Moreover,
this would not be an appropriate case for adoption of the doctrine, because the trial court
found, in the face of conflicting testimony, that Appellant could not have believed
himself to be KEP’s parent because the court believed Mother’s testimony that she was
five months pregnant and “showing” when she met him, and that the child was delivered
about four months later. That finding was not clearly erroneous in light of the conflicting
evidence presented.

                          SUMMARY AND CONCLUSION

[¶57] The district court did not err in concluding that Appellant was not KEP’s
presumptive parent, and even if he had been, the presumption was conclusively rebutted
by a paternity test that was stipulated into evidence. We decline to adopt de facto
parentage or parentage by estoppel, instead leaving that important policy decision to the
Wyoming Legislature for the reasons stated above.


                                              19
[¶58] Affirmed.




                  20
