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Moriggia v. Castelo

Court of Appeals of North Carolina

October 17, 2017


         Heard in the Court of Appeals 16 November 2016.

         Appeal by plaintiff from order entered 4 January 2016 by Judge Anna Worley in District Court, Wake County No. 15 CVD 3156.

          Hatch, Little & Bunn, LLP, by Justin R. Apple and Kathy H. Lucas, for plaintiff-appellant.

          Rik Lovett & Associates, by S. Thomas Currin II, for defendant-appellee.

          STROUD, JUDGE.

         Plaintiff Leonora Moriggia ("plaintiff") appeals from the trial court's order granting defendant Linda Castelo ("defendant")'s motion to dismiss under Rule 12(b)(1) and dismissing plaintiff's complaint for lack of standing. On appeal, plaintiff argues that she has standing to maintain an action for custody and that defendant acted inconsistently with her parental status by intentionally and voluntarily creating a family unit and making plaintiff a de facto parent. Because the trial court's findings of fact do not support its conclusion that plaintiff has no standing to maintain a custody action, we vacate the order and remand for further proceedings.


         Plaintiff's complaint alleged that plaintiff and defendant were a lesbian couple who never married but "were in a committed and loving relationship from January 2006 until October 2014[.]" The couple decided during the relationship to have a child. Defendant was selected to carry the child because plaintiff had already experienced a pregnancy when she gave birth to her biological daughter, Trisha, [1]whom she brought into the relationship. Both parties' eggs were harvested, but after attempts at artificial insemination were unsuccessful, they agreed to use a donor sperm and donor egg. On 11 June 2013, the minor child, Raven, was born.

         The parties separated in October 2014, and on 11 March 2015, plaintiff filed her complaint for child custody seeking joint temporary and permanent custody of Raven. Defendant answered on 1 May 2015 with a motion to dismiss and alternative counterclaim for child custody, seeking sole legal and physical custody. In her motion to dismiss plaintiff's complaint, defendant contended that plaintiff "is not a parent of [Raven] either legally or biologically" and argued that she "does not have standing to bring and maintain a child custody action against Defendant, who is [Raven]'s legal and physical mother." The hearing on temporary custody and defendant's motion to dismiss was held on 21 July 2015, and the trial court took the motion to dismiss under advisement. On 4 January 2016, the trial court entered an order dismissing plaintiff's complaint for child custody for lack of standing. The trial court's order found, in relevant part, that:

7. Plaintiff and Defendant were involved in a romantic, homosexual relationship and considered each other to be life partners.
8. Plaintiff and Defendant lived together from January 2006 until December 2008, at which time they separated, and then resumed living together from January 2010 until October 2014.
9. The parties broke off their relationship in October of 2014 but continued to live together in the same residence until Plaintiff left on February 14, 2015.
10. Plaintiff filed this custody action on March 11, 2015.
11. When the parties briefly separated in December of 2008 . . . Defendant would have visitation with [Trisha] and [Trisha] would frequently spend the night with Defendant at her residence.
12. During the parties' relationship they discussed their family and together planned on adding at least one child to their family.
13. Beginning in 2012, the parties attended appointments at Carolina Conceptions where they discussed in vitro fertilization. Both parties jointly signed a contract with Carolina Conception for the conception of the minor child, [Raven], in this matter.
14. The parties discussed using artificial insemination as a means of getting pregnant and it was agreed Defendant would go through the pregnancy. . . .
15. When the Defendant was determined to be infertile, the Plaintiff's eggs were harvested in an attempt to artificially inseminate the Defendant; however, the Plaintiff did not produce enough eggs for the procedure.
16. The parties then discussed and researched adoption, both attending an informational meeting; however, shortly thereafter agreed that the adoption process was not for them because of the cost and potential for the biological parent to attempt involvement with any potential adoptive child. Plaintiff and Defendant nonetheless decided to continue seeking to enlarge their family. The parties then went back to Carolina Conceptions and elected to proceed with the artificial insemination process using donor sperm and donor egg through the anonymous process.
17. Defendant ultimately became pregnant via in vitro fertilization by a donor sperm and a donor egg. Plaintiff and Defendant share no genes with the child and have a completely different genetic code.
. . . .
19. Once the parties became aware that Defendant was pregnant, they made an announcement to [Trisha] welcoming her into the "Big Sister's Club." . . . . Defendant told [Trisha] that she was [Raven]'s big sister.
20. On August 29, 2012, Defendant was listed as Recipient and Plaintiff as "Partner", collectively they were referred to as "Recipient Couple". The parties acknowledge in the Contract that any child resulting from the procedure will be their legitimate child in all aspects, including descent and distribution as our child. . . .
21. Plaintiff contended that her $5, 575 check made out to Carolina Conceptions was a contribution to the $20, 000 overall cost and was intended by Plaintiff to create a family with Defendant. She also testified that she owed the Defendant these funds as satisfaction of an outstanding debt Plaintiff owed to Defendant.
22. Defendant contends that the $5, 757 [sic][2] was in satisfaction of an outstanding debt Plaintiff owed Defendant.
23. The parties also pulled a combined $18, 000 out of their 401(k) retirement accounts combined to pay the costs of the artificial insemination procedure.
. . . .
25. Prior to the pregnancy, the Defendant intended that Plaintiff serve as a parent to [Raven]. At the time of [Raven]'s birth, Defendant had changed her mind as to Plaintiff's role as a parent to [Raven]. She began excluding Plaintiff from any parenting role, insisting that she, alone, be treated as [Raven]'s mother.
26. The parties planned the baby's nursery together, Plaintiff's friend purchased [Raven's] crib. [Raven's] dresser and other furniture and some clothing for the baby were purchased using a gift card received from the baby showers.
27. There were two baby showers. One shower was held in New Jersey on Defendant's behalf, and Plaintiff and Defendant's family contributed financially toward the shower. Half of the people in attendance were Plaintiff's family and friends.
. . . .
30. Just before Defendant went into labor, Plaintiff and her mother thoroughly cleaned the family's home to get it ready for [Raven]'s arrival. The Defendant posted a note thanking her "mother in law" for assisting in the cleaning for "our daughter".
31. During the artificial insemination process with Carolina Conceptions, Plaintiff would be included in the email communications. Defendant would refer to Plaintiff and Defendant as "We" when inquiring about the next steps and would sign the email as "Linda & Lee".
32. The Plaintiff attended all of the Defendant's ultrasound and other prenatal appointments unless the appointment was just to take her blood pressure since she was an at risk pregnancy.
33. The Plaintiff and Defendant both attended the recipient classes required by Carolina Conceptions and parenting classes during Defendant's pregnancy.
34. During Defendant's pregnancy she sent an e-mail to Plaintiff indicating how much she loved Plaintiff and couldn't wait to raise the "niblet" together.
35. Plaintiff has a bond with [Raven]. [Trisha] also has a bond with [Raven].
36. Defendant encouraged a sisterhood between the children, [Trisha and Raven], and the sisterhood was to be permanent and ongoing well beyond the parties' life time.
37. The Defendant once gave Plaintiff a Mother's Day card addressed to "Leemo" on [Raven]'s behalf.
38. In a text, Defendant assured Plaintiff after they separated that she would continue to see [Raven] as she was her "mama too".
39. Plaintiff and [Trisha] lived with Defendant during conception, birth and for the first twenty (20) months of [Raven]'s life.
40. Only the Defendant's name appeared on the Birth Certificate on the announcement of the child's birth.
41. After the birth of [Raven], Defendant sent an email to Carolina Conceptions thanking them on behalf of [plaintiff], Big Sister [Trisha] and Baby [Raven]. She states, "[Plaintiff, Trisha and I] are so elated to have her as part of our extended family, " and they have "made us the happiest family on earth." Pictures were then included of the ...

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