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McCrillis v. Hicks

Court of Appeals of Arkansas, Division I

April 12, 2017

TABITHA MCCRILLIS APPELLANT
v.
SARAH HICKS APPELLEE

         APPEAL 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.

          Coplin & Hardy, PLLC, by: Betty J. Hardy, for appellee.

          BART F. VIRDEN, JUDGE

         Tabitha 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 trust.

         We 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.

         I. Factual History

         In 2012 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.

         In the 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.

         On July 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.

         On the 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.

         There 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.

         Hicks 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.

         The 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         McCrillis 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.

         McCrillis 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 ...


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