Appeals Court February 2, 2012
Procedural history: Gabriella Della Corte appeals from a modification judgment entered by a probate judge maintaining joint legal custody of her child with Angelica Ramirez. On appeal, Della Corte claims that Ramirez is not a legal parent, the judge erred in finding no material or substantial change in circumstances and in not using the best interests of the child standard.
Holding: Order affirmed.
Facts: Della Corte was artificially inseminated with the sperm of an anonymous donor approximately two months before Della Corte and Ramirez were married. Ramirez was involved in the insemination process and was an integral part of the couple’s decision to conceive. Della Corte and Ramirez were married when the child was born.
Issue 1: Is Ramirez a legal parent?
Yes. “Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.” G. L. c. 46, §4B. “Husband” does not exclude same-sex married couples; same-sex partners are similarly situated to heterosexual couples in these circumstances. See Goodridge v. Department of Pub. Health, 440 Mass. 309, 343 n.34 (2003). Marriage is not a requirement as the statute states “[a]ny child born,” not “any child conceived.” Further, when a marriage is between same-sex couples, the need for a second parent to adopt to confer legal parentage on the non-biological parent is eliminated when the child is born of marriage.
Issue 2: Has there been a material change in circumstances?
No. The only change Della Corte showed is that the child has become older since the original decree; the probate judge did not abuse his discretion.
Issue 3: Did the probate court err in not conducting a best interest of the child analysis?
No. Because there was no material change in circumstances, the judge did not need to proceed to a best interest analysis under the statute. (LP)
