in the Court of Appeals 16 November 2016.
by plaintiff from order entered 4 January 2016 by Judge Anna
Worley in District Court, Wake County No. 15 CVD 3156.
Little & Bunn, LLP, by Justin R. Apple and Kathy H.
Lucas, for plaintiff-appellant.
Lovett & Associates, by S. Thomas Currin II, for
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.
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,
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.
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
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
12. During the parties' relationship they discussed their
family and together planned on adding at least one child to
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] 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 &
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
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 ...