FROM THE PULASKI COUNTY CIRCUIT COURT, THIRD DIVISION [NO.
60DR-15-2647] HONORABLE CATHLEEN V. COMPTON, JUDGE
LaCerra, Dickson, Hoover & Roger, PLLC, by: Lauren White
Hoover, for appellant.
& Hardy, PLLC, by: Betty J. Hardy, for appellee.
F. VIRDEN, JUDGE
McCrillis appeals from the order of the Pulaski County
Circuit Court granting joint custody and visitation to her
former domestic partner, Sarah Hicks. McCrillis argues the
following points on appeal. First, McCrillis argues that the
circuit court erred in finding that Hicks stood in loco
parentis to McCrillis's biological child, C.H., and the
circuit court erred when it granted Hicks visitation and
joint custody pursuant to its finding of Hicks's in loco
parentis status. Second, McCrillis asserts that the circuit
court erred when it found that she was equitably estopped
from denying Hicks visitation with C.H. Third, McCrillis
contends that the circuit court erred in ordering that
child-support payments from Hicks be placed in an educational
affirm the circuit court's determination that Hicks stood
in loco parentis to C.H. We reverse the circuit court's
award of joint custody, and we affirm on the issue of
visitation. We affirm the circuit court's finding that
McCrillis is equitably estopped from denying Hicks visitation
with C.H. We reverse the circuit court's order that child
support be paid into an educational trust, and we remand the
issue of child support for the circuit court to resolve in a
manner consistent with this opinion.
Tabitha McCrillis and Sarah Hicks, who were domestic partners
at the time, decided that they wanted to have a child
together. Through an in-home artificial-insemination kit and
sperm from a bank, McCrillis became pregnant, and on December
17, 2013, C.H. was born. Prior to C.H.'s birth, the
parties retained an attorney who drew up wills for the
parties, set up a trust for the benefit of the child, and
created a "Domestic Partnership Agreement"
(agreement), which specified, among other things, how the
parties would divide their time with C.H. if the parties
terminated their relationship.
spring of 2015, McCrillis and Hicks separated, and by June
their domestic partnership had ended. At first, the parties
followed the visitation schedule set forth in the agreement;
however, shortly thereafter, McCrillis began limiting
Hicks's visitation with C.H. On June 23, 2015, Hicks
filed a complaint in the Pulaski County Circuit Court
requesting that the court enforce the agreement based on
equitable promissory estoppel, and she requested that the
court establish joint custody and visitation. In her petition
Hicks alleged that she and McCrillis had agreed that, in the
event their relationship ended, they would share joint
custody of C.H. Hicks argued that McCrillis had recently
refused to allow her to have substantial visitation with the
child, which was contrary to their agreement that dealt with
not only custody and visitation, but also financial plans,
tax issues, educational support, and many other child-rearing
issues in great detail. Hicks argued that the agreement and
other evidence showed that she stood in loco parentis to C.H.
27, 2015, McCrillis responded that there was no legally
binding or enforceable contract and that Hicks did not stand
in loco parentis; thus, McCrillis argued, it was not in the
child's best interest to grant Hicks's petition.
morning of September 9, 2015, McCrillis filed a memorandum to
the court. In the memorandum, McCrillis asserted that Hicks
did not assert or prove that McCrillis was an unfit parent,
and therefore, it was a violation of her Fourteenth Amendment
rights to award Hicks custody and visitation. McCrillis also
argued that Hicks did not have a sufficient bond with C.H.
such that she could be found to be standing in loco parentis
to the child, and for that reason as well, it was not in the
best interest of the child to award visitation to Hicks.
was a hearing on the matter later that day. At the hearing,
Hicks testified that she and McCrillis had talked about
having a child early in 2012 and that they eventually chose a
sperm donor from a bank in Washington. Hicks testified that
they intentionally chose a donor with Hicks's eye and
hair color with the idea that the child would resemble her.
The parties used joint funds to pay for the in-home
insemination kit and sperm. Hicks explained that she took
time off from work to "hit the fertility window"
and that she inseminated McCrillis. Hicks testified that she
went to every obstetric appointment with McCrillis and that
she read to C.H. and played music for her while McCrillis was
pregnant. The parties named C.H. after Hicks's mother and
gave the child Hicks as her surname. Hicks testified that
before the child was born, they hired an attorney to draw up
a guardianship document. The document set forth that Hicks
would become C.H.'s guardian if anything were to happen
to McCrillis, and that if the domestic partnership ended,
they would share custody of C.H. as though she were
Hicks's biological child. Hicks testified that she
participated in C.H.'s delivery and that her hospital
armband identified her as C.H.'s parent. Hicks testified
that she shared all parenting responsibilities except for
breastfeeding and that she fed C.H. with a bottle to
supplement the child's feeding. Hicks helped choose the
daycare, signed the day-care documents as a parent, and
shared the responsibility of dropping C.H. off and picking
her up. When C.H. was sick, Hicks and McCrillis alternated
who would stay home with the child. Hicks presented video to
the court that had been recorded at different times and
showed her playing with and caring for C.H.
explained that immediately after McCrillis informed her that
she wanted to separate, the parties followed a weekly
visitation schedule that allowed McCrillis to keep C.H. four
nights a week, with Hicks having visitation the other three
nights. That arrangement continued until sometime in late May
when McCrillis cut back Hicks's time with the child to
two nights a week. In June, McCrillis limited Hicks's
visitation to four hours once per week. On June 30, 2015,
McCrillis disallowed all contact between Hicks and C.H.
court ruled from the bench that Hicks stood in loco parentis
to C.H. and that "custody and visitation will
resume" as it had been-four days and nights with
McCrillis and three days and nights with Hicks.
McCrillis's motion to dismiss was denied.
September 15, 2015, Hicks filed a motion to set a visitation
schedule. Hicks explained that she and McCrillis could not
reach an agreement regarding visitation, and she requested
that the court set visitation. McCrillis responded,
reiterating her argument that allowing Hicks to have
visitation with C.H. constituted a violation of
McCrillis's Fourteenth Amendment rights. McCrillis also
requested that the circuit court reconsider its finding that
Hicks stood in loco parentis, and McCrillis petitioned the
court to stay visitation.
September 16, 2015, Hicks responded that she and McCrillis
had always intended for Hicks to be a parent to C.H., that
she and C.H. had formed a strong bond, and that she stood in
loco parentis to C.H.
September 22, 2015, the circuit court set a visitation
schedule and granted McCrillis's motion to reconsider. In
the order, the circuit court set forth that Hicks would pick
up the child from daycare on Friday afternoons, and return
the child to day care on Monday mornings. The order stated
that McCrillis would pick up the child from day care on
Monday afternoons, and C.H. would remain in her care until
she dropped her off at daycare on Friday mornings. The
circuit court ordered that this schedule would remain in
effect until further notice. The circuit court also ordered
Hicks to pay $225 biweekly in child support.
September 28, 2015, McCrillis filed a motion to vacate the
visitation order. McCrillis argued that there was no bond
between Hicks and C.H. and that to order visitation would be
introducing a "legal stranger" into the child's
life. Hicks responded that McCrillis's statements about
the lack of a bond between her and the child were
"disingenuous" and that she was a parent in all
respects. The circuit court denied the motion to vacate on
October 2, 2015.
October 7, 2015, the circuit court held the second hearing on
the matter. Eddie Keathley, a friend of Hicks and
McCrillis's, testified that both women were committed to
becoming parents and that Hicks was "in on it from the
very beginning and still is." Keathley testified that
Hicks and McCrillis both are called "mama" and that
during a recent visitation with Hicks, C.H. responded to
Hicks by reaching for her and smiling at her.
also testified at the hearing. She explained that she and
Hicks had decided that they wanted to have a baby together
and that they had planned on raising the child together.
McCrillis testified that Hicks participated in
"skin-on-skin" bonding to help C.H. gain weight and
that Hicks took two weeks off from work after the baby had
been born. When McCrillis went back to work, Hicks took one
week off to be home with C.H. before she started day care.
controverted Hicks's testimony concerning her parental
role. McCrillis testified that Hicks helped with feedings but
that Hicks did not want to get up in the night with the baby
and that she complained about having to do so. She testified
that Hicks did not want to hold C.H. when she cried, and that
the bond between Hicks and C.H. diminished as time went on
because Hicks was resentful of C.H. and blamed the child for
the relationship problems they were having. McCrillis
testified that after ...