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Same Sex Marriage

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De Facto Parent.  The Appeals Court found no abuse of discretion where a Probate and Family Court Judge dismissed a complaint of a woman seeking to be adjudged a de facto parent of the adopted child of her former same sex partner. Applying the de facto parenting test enunciated in prior case law, the judge had determined that the woman had satisfied the “pre-existing relationship” requirement for de facto parent status but found that the child would not be harmed by the disruption of that relationship and, further, that the parties did not intend to co-parent prior to the dissolution of the relationship. The Appeals Court also noted that, standing alone, the “failure of the parties to co-adopt or execute a parenting agreement” was not dispositive. Smith v. Jones, 69 Mass.App.Ct. 400 (June 22, 2007)
 
Same Sex Marriage.  In a decision that may have some relevance to the manner in which the length of marriage is measured in a same sex divorce, the Supreme Judicial Court held that a same sex partner of a plaintiff in a medical malpractice action could not assert claims for loss of companionship since the couple was not married at the time the cause of action occurred.  Although the couple was prohibited from marrying at the time and married almost immediately after Goodridge, this case turned on the fact that the couple did not have a legal relationship at the time the action accrued.   The length of marriage factor, of course, is a crucial one in divorce.  In same sex divorces, many practitioners have argued that in long term relationships that preceded marriage, a court ought to “tack on” years to account for the period during which the couple were not legally able to marry.  That position, it seems, is a bit more tenuous now. Curious readers may wish to compare this decision to Moriarty v. Stone, 41 Mass.App.Ct. 151 (1996) in which the divorcing heterosexual couple enjoyed a long period of premarital cohabitation.  In that case, the Appeals Court affirmed a divorce judgment that considered the respective contributions of the parties during the period of premarital cohabitation.  Charron v. Amaral, 451 Mass. 767 (July 10, 2008)