Moreau v. Sylvester, Sylvester v. Moreau

2014 VT 31, 196 Vt. 183

• Court: Supreme Court of Vermont
• Decided: April 4, 2014
• Docket: 2012-152 & 2012-154
• Status: Published

Opinions

Burgess, J.

¶ 1. In this consolidated appeal defendant Christopher Moreau contests the Washington family court’s dismissal of his emergency petition for child custody and parentage complaint over children with whom he shares no biological or other established legal connection, as well as the Caledonia family court’s issuance of a relief-from-abuse (RFA) order denying him visitation with the children.¹ Defendant contends that he is the children’s de facto parent and entitled to assert and be heard on custody, parentage and visitation rights. We disagree and affirm.

¶ 2. The following background is drawn from findings of fact made by the Caledonia family court at the final RFA order hearing. Plaintiff and defendant were in an on-again-off-again relationship for eight to ten years; they never married. Plaintiff is the mother of two children, born in 2003 and 2006. Defendant is not the biological father of either child. Nevertheless, he played a significant, father-figure role in both of the children’s lives. Although plaintiff and defendant separated in February 2009, they had an ongoing arrangement for shared responsibility for the children. For example, the children lived with defendant for a period of time in May 2011 when flooding rendered plaintiffs residence uninhabitable. During the periods of care assigned to defendant, he was sometimes unwilling to return the children to their mother, and plaintiff testified credibly that this created a dangerous situation on at least one occasion.

¶ 3. The incidents giving rise to the present appeals occurred on March 5, 6 and 7, 2012. The parties’ rapport had deteriorated in the preceding days, and the children were with plaintiff in the home she shared with her new partner. On March 5, defendant sent plaintiff a text message at 8:05 p.m. stating “I promise you, for the rest of my life, I will find my girls and I will never stop, ever.”

¶ 4. In the early hours of March 6, defendant and a friend drove to the new partner’s place of employment to confirm he was at his job and not at plaintiffs residence. Defendant and his friend then drove to plaintiffs home, arriving at approximately 2 a.m. They proceeded to knock on plaintiffs door for at least ten minutes. Defendant claimed that he did this out of concern for the children. Plaintiff was at home with her children without a vehicle or a cell phone she believed to be operable. Plaintiff was also aware that defendant owned a gun.

¶ 5. Twenty-four hours later, on March 7, defendant and his friend again drove to the new partner’s place of employment to verify he was not at plaintiffs residence. Defendant and his friend arrived at plaintiffs home at 2 a.m., and defendant directed his friend to bang on plaintiffs door. Defendant then joined his friend and together they banged on the door until the police arrived. Defendant claimed that the purpose of the visit was to drop off some of the children’s belongings so they could have them for school. Defendant gave these belongings to police officers who placed them in plaintiffs possession. Defendant was then served with a temporary RFA order, which plaintiff had obtained the day before.

¶ 6. At the final RFA hearing on April 3, 2012, the trial court concluded that defendant had placed plaintiff and her children in imminent fear of serious physical harm. The trial court issued an RFA order prohibiting defendant from contacting or interacting with plaintiff as well as the children for one year, noting that “[defendant is not their biological father.” Defendant appeals this order in docket 2012-154.

¶ 7. Meanwhile, before the final RFA hearing and evidently unbeknownst to plaintiff, defendant filed in the Washington family court an emergency petition for visitation and a parentage complaint seeking sole physical and legal custody of plaintiffs children. The trial court dismissed both actions on April 24, 2012 because defendant is not related to the children in any way. Defendant appeals this dismissal in docket 2012-152.

¶ 8. On appeal, defendant requests a remand for evidentiary findings as to whether he is a de facto parent of plaintiffs children and, if so, whether visitation is in the children’s best interest. Defendant argues that: (1) we should apply the best-interest-of-the-children principle contained in Vermont custody statutes “to create enforceable visitation between children and de facto parents”; (2) we should reexamine our reasoning in Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682 (1997), denying equitable relief to persons asserting de facto parentage because “changing demographics in Vermont necessitate a modernized interpretation of the law”; and (3) in the past, this Court has interpreted existing statutes and the Vermont Constitution to expand custody and marriage laws.² Plaintiff, representing herself, did not file a responsive brief.

I.

¶ 9. Some background on the development of parental rights and visitation law in Vermont, especially outside the context of divorce proceedings for persons not related by blood to children, will assist the reader. In 1984 the Legislature enacted the Parentage Proceedings Act, giving putative fathers the right, denied at common law, to establish paternity and thus pursue custody or visitation. 15 V.S.A. §§ 301-306.

¶ 10. In 1985, this Court recognized that 15 V.S.A. §§ 291 and 293 empowered courts to award custody to still-married stepparents in cases of desertion, nonsupport, or living separately. Paquette v. Paquette, 146 Vt. 83, 85, 499 A.2d 23, 25-26 (1985). The Paquette Court also acknowledged that former 15 V.S.A. § 652, which set forth custody guidelines for any “child of the marriage” in divorce proceedings, allowed courts to award custody to stepparents standing in loco parentis, but only upon a showing “by clear and convincing evidence that the natural parent is unfit or that extraordinary circumstances exist to warrant such a custodial order, and that it is in the best interests of the child.” Id. at 86, 92, 499 A.2d at 26, 30.

¶ 11. Eight years later, we interpreted two provisions of Vermont’s then-existing adoption statute, 15 V.S.A. §§ 431 and 448, to allow adoption by an unmarried, same-sex partner of the child’s birth mother without having to terminate the natural mother’s parental rights. In re B.L.V.B., 160 Vt. 368, 369-70, 628 A.2d 1271, 1272-73 (1993). The statute authorized adoption by an unmarried “person,” but, read literally, required terminating the “natural” parent’s rights in favor of the adopting person’s parental rights, except when the adopting person was a stepparent married to the natural parent. Id. at 370-71, 628 A.2d at 1273. We explained that, by “allowing same-sex adoptions to come within the step-parent exception of §448, we are furthering the purposes of the statute as was originally intended by allowing the children of such unions the benefits and security of a legal relationship with their de facto second parents.”³ Id. at 375, 628 A.2d at 1276. Thus, our holding corrected an “unreasonable and unnecessary” application of the statute that would thwart an adoption in the child’s best interests by a person otherwise qualified to adopt, but for her partnership with the mother. Id. at 369, 628 A.2d at 1272. In 1996 the Legislature confirmed the B.L.V.B. holding in the new Adoption Act, 15A V.S.A. §§ 1-101 — 8-101, providing that “[i]f a family unit consists of a parent and the parent’s partner, and adoption is in the best interest of the child, the partner of a parent may adopt a child of the parent” without terminating his or her parental rights. Id. § 1402(b).

¶ 12. The concept of de facto parents was revisited in Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682 (1997), the case that is the focus of defendant’s appeal here. Titchenal involved two women in a relationship who jointly participated in raising a child adopted by only one of them. The parties’ relationship disintegrated, and the adoptive mother would not allow the plaintiff contact with the child. Lacking a statutory provision under which she could petition the family court, the plaintiff filed a complaint requesting the general civil court⁴ to exercise its equitable power to establish parent-child contact. The complaint was dismissed for lack of jurisdiction. Id. at 375-76, 693 A.2d at 683. On appeal, the plaintiff urged this Court “to grant ‘nontraditional’ family members access to the courts by recognizing the legal rights of de facto parents” — those persons who share a bond with a child but otherwise no legally cognizable connection, either through biology, marriage, statute or court order. See id. at 376, 376 n.l, 693 A.2d at 683-84, 684 n.l (explaining “de facto parent” as a person with psychological bond to child, and doctrine of “in loco parentis” as entailing emotional and financial support, and that “[f]or purposes of this opinion, we see no need to draw fine lines between the doctrines. Plaintiffs point is that though she is not the legal parent of [the child], in all other respects she has acted as the child’s parent.”).

¶ 13. The precise issue addressed in Titchenal was whether equity provided an avenue for the civil court to adjudicate visitation claims within the then-exclusive jurisdiction of the family court, but incapable of being brought in family court under Vermont statutes. Id. at 375, 693 A.2d at 683. The Titchenal plaintiff posited that the family court retained jurisdiction to adjudicate parent-child contact disputes capable of being brought in a statutory proceeding, and that the civil court had equitable powers to adjudicate disputes involving parties not recognized by statute — such as claims brought by putative de facto parents. We found “no legal basis for plaintiffs proposal” because “[c]ourts cannot exert equitable powers unless they first have jurisdiction over the subject matter and parties. . . . Equity generally has no jurisdiction over imperfect rights arising from moral rather than legal obligations; not every perceived injustice is actionable in equity — only those violating a recognized legal right.” Id. at 377, 693 A.2d at 684.⁵

¶ 14. Post-Titchenal, third-party child visitation rights reached the U.S. Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000). The Supreme Court held that, despite the “changing realities of the American family,” a Washington State statute allowing for “[a]ny person” to petition for child-visitation rights “at any time” was impermissibly overbroad and an unconstitutional infringement upon the fundamental rights of parents to rear their children. Id. at 60, 64, 73. Declining to “define . . . the precise scope of the parental due process right in the visitation context,” the Court left open the possibility of third-party child-visitation statutes but cautioned that “any standard for awarding visitation turns on the specific manner in which that standard is applied . . . the constitutional protections in this area are best elaborated with care.” Id. at 73 (quotation omitted); see also Glidden v. Conley, 2003 VT 12, ¶¶ 19-21, 175 Vt. 111, 820 A.2d 197 (evaluating constitutionality of Vermont’s grandparent visitation law in light of Troxel and construing statute to preclude court interference with fit parent’s presumptively valid right to restrict grandparent visitation).

¶ 15. Nonbiological parentage was last addressed in Miller-Jenkins v. Miller-Jenkins, 2006 VT 78, 180 Vt. 441, 912 A.2d 951, where we rejected the argument of the birth mother partner in a former civil union that the other partner had no parental rights to a child born to the union through their mutually-agreed-upon artificial insemination. The biological parent relied, in part, upon rebutting the presumption in 15 V.S.A. § 308(4) that a married person is the natural parent of a child born during the marriage. 2006 VT 78, ¶ 42. The presumption applied to civil unions because the parties to a civil union are statutorily entitled to all of the rights of married couples with respect to a child of whom either partner is the natural parent. 15 V.S.A. § 1204(f); see also id. § 1204(d) (“The law of domestic relations, including annulment, separation and divorce, child custody and support, and property division and maintenance shall apply to parties to a civil union.”).

¶ 16. We concluded, however, that the § 308(4) presumption exclusively related to child support, and that neither the presumption nor its rebuttal was relevant to “the rights of parentage of children born through artificial insemination or to same-sex partners.” Miller-Jenkins, 2006 VT 78, ¶ 44. Instead, the case was more akin to Paquette, insofar as the nonbiological same-sex partner was vested with “at least the status of a stepparent” within her civil union “by virtue of § 1204(d) and (f).” Id. ¶¶ 45, 47. Unlike in Paquette, we concluded in Miller-Jenkins that the nonbiological second parent qualified as a parent on equal footing with the biological mother.

¶ 17. Moreover, the entire rationale behind Miller-Jenkins was to address the rights of civil union partners in the express context of their jointly intended artificial insemination. Id. ¶¶44, 48-52. Among the factors considered by the Court in assigning parentage rights to the nonbiologically-related partner were the parties’ legally recognized civil union, their mutual design to expand their family through artificial insemination, their shared active participation in prenatal care and birth, and their co-parenting from the time of conception until their breakup. Id. ¶ 56. By virtue of the equal-protection provision in the civil union statute, the factors that would make a husband a parent of a child born from artificial insemination applied equally to the nonbiological partner of a civil union. Id.

¶ 18. The dissent characterizes Miller-Jenkins, which was hardly cited and barely discussed by defendant, as “closely analogous” and as addressing “the question actually presented here.” Post, ¶ 49. But the differences between Miller-Jenkins and the present case far exceed their singular similarity of a now-estranged partner who shared child rearing with the biological mother. In this case, there is no civil union, or any other legally recognized domestic relationship between the parties as in Miller-Jenkins. Unlike the child in Miller-Jenkins, the children in this case are not the product of mutually-agreed-upon artificial insemination. Perhaps most critically, in this case there is no statutory extension of marital, stepparent or parental rights to the putative nonbiological parent upon which to base a parentage claim. In short, the parental rights recognized in Miller-Jenkins were based upon statutory rights of civil union partners, not on any general judicial endorsement of de facto parenthood.

II.

¶ 19. In this appeal, defendant contends that equity provides a jurisdictional basis for de facto parents to petition the family court for custody, parentage and visitation in the absence of a statutory right to do so, and notwithstanding the holding in Titchenal that equity confers no jurisdiction in the civil court for such claims. The dissent insists that defendant’s claim is a statutory parentage action by which he may assert standing as a “natural parent” entitled to a parentage order under 15 V.S.A. § 302(a).⁶ Defendant, however, concedes that, as one who welcomed nonbiological children into his life, he has “no legal remedy.”⁷ He contends that the best-interests-of-the-child case law is inconsistent with our denial of equity jurisdiction in Titchenal to permit consideration of de facto parentage claims, and that developments in family dynamics, demographics, and both foreign and domestic case law since Titchenal, militate in favor of departing from that equity ruling.

¶20. Thus, defendant’s claim is essentially an appeal to equity — particularly given his acknowledgement of the absence of any available remedy at law.⁸ Titchenal, 166 Vt. at 377, 693 A.2d at 684 (“[A] court may exert its equitable powers to grant appropriate relief only when ... no adequate legal remedy is available.”); Gerety v. Poitras, 126 Vt. 153, 155, 224 A.2d 919, 921 (1966) (“Equity will not afford relief where there is a plain, adequate, and complete remedy at law.”). For its part, the dissent embarks on statutory construction and case analysis not advanced by defendant, even though this Court ordinarily rejects arguments not raised on appeal.⁹ Mullestein, 148 Vt. at 175, 531 A.2d at 893.

¶ 21. For the reasons discussed below, we decline defendant’s invitation to abandon our reasoning in Titchenal and accept a broad de facto parent doctrine, as suggested by defendant, that essentially would allow any former domestic partner to compel a biological parent to defend against the unrelated ex-partner’s claim that he or she is a “parent” entitled to judicially enforced parental rights and responsibilities.¹⁰ See S. Coupet, “Ain’t I a Parent?”: The Exclusion of Kinship Caregivers from the Debate over Expansions of Parenthood, 34 N.Y.U. Rev. L. & Soc. Change 595, 595-96 (2010) (arguing that de facto parenthood should not be limited to conjugal relationships and advocating for inclusion of kinship caregivers as potential de facto parents). Though ultimately decided on jurisdictional grounds, the reasoning of Titchenal, which declined to recognize an equitable basis for jurisdiction over de facto parents, is no less compelling when applied to the same cause of action in family court.

¶ 22. Defendant is in the same position as the de facto parent in Titchenal, and equity does not support jurisdiction for a nonparent to assert child custody rights any more here than it did in Titchenal. The Titchenal Court explained that equitable powers are available “to grant appropriate relief only when a judicially cognizable right exists, and no adequate legal remedy is available. . . . Courts may exert equitable powers based upon common-law, statutory, or constitutional rights, or upon judicial acknowledgement of public-policy considerations establishing an as-yet-unrecognized legal right.” 166 Vt. at 377, 693 A.2d at 684. The plaintiff in Titchenal was without a statutory or constitutional right to petition the superior court, and so the question became whether common law or public policy considerations required recognition of de facto parents for jurisdictional purposes.

¶ 23. Common law was unavailing in this respect. Vermont follows the “general common-law rule that parents ha[ve] the right to the custody, control, and services of their minor children free from governmental interference.” Id. at 378, 693 A.2d at 685. We observed that Vermont had no common-law history of interfering with the rights of fit parents absent statutory authorization, with the narrow exception of the state’s exercise of parens patriae power to adjudicate dependency or neglect petitions. Id.) see also In re A.D., 143 Vt. 432, 435-36, 467 A.2d 121, 124 (1983) (stating that when “the State intervenes in the area of child neglect, it does' so as parens patriae to the child” with “a legitimate and compelling interest in the safety and welfare of the child” as well as “maintaining family integrity.” (citation omitted)).

¶ 24. Nor were public policy considerations helpful. The Titchenal plaintiff and those affected by the decision did not face circumstances “cruel or shocking to the average [person’s] conception of justice” as a result of that decision. Titchenal, 166 Vt. at 380, 693 A.2d at 686 (alteration in original) (quotation omitted). Partners of heterosexual or same-sex couples could “protect their interests” in potential parentage through existing procedures. Id. Heterosexual couples could then and now, as same-sex couples can now, achieve parentage rights through marriage or adoption, and nonbiological parents in same-sex relationships can gain similar assurances through adoption.¹¹

¶ 25. As in Titchenal, we acknowledge that “there are public-policy considerations that favor allowing third parties claiming a parent-like relationship to seek court-compelled parent-child contact.” Id. at 385, 693 A.2d at 689. These considerations, however, are still not so persuasive as to compel recognition of a new cause of action, and matching equitable jurisdiction to entertain it, so that acquaintances and partners with less than adoptive or even stepparent status can seek court-compelled visitation with children of persons not legally related to them and against the wishes of their natural parents. As we observed in Titchenal, “[g]iven the complex social and practical ramifications of expanding the classes of persons entitled to assert parental rights by seeking custody or visitation, the Legislature is better equipped” to address this issue.¹² Id. Deference to the Legislature continues to be prudent “because the laws pertaining to parental rights and responsibilities and parent-child contact have been developed over time solely through legislative enactment or judicial construction of legislative enactments.” Id.

¶ 26. Essentially, defendant posits that legislative inaction since Titehenal in recognizing claims like his should prompt judicial invention of de facto parentage rights. Yet other than citing national and Vermont family demographics statistics that show more children in households with unmarried couples, defendant proffers no equitable consideration requiring this Court to find such jurisdiction where the Legislature has so far declined to extend it. Other courts have declined to fill defendant’s perceived vacuum.¹³ See McGuffin v. Overton, 542 N.W.2d 288, 292 (Mich. Ct. App. 1995) (per curiam) (holding that no generalized third-party standing existed in custody proceeding for party with parent-like relationship because “[t]he Legislature . . . has been very specific in limiting those third persons who may bring an action for custody”); Alison D. v. Virginia M., 572 N.E.2d 27, 29 (N.Y. 1991) (holding that de facto parent did not have standing to pursue visitation with child because domestic relations law “gives parents the right to bring proceedings to ensure their proper exercise of their care, custody and control” and “[w]here the Legislature deemed it appropriate, it gave other categories of persons standing to seek visitation ... in the child’s best interests” (emphasis in original) (citations omitted)); In re Thompson, 11 S.W.3d 913, 923 (Tenn. Ct. App. 1999) (stating that although “Tennessee’s legislature has generally conferred upon parents the right of custody and control of their children, it has not conferred upon” third parties who claim to be de facto parents “any right of visitation.” (citation omitted)).

¶ 27. Defendant’s remaining arguments in support of recognizing jurisdiction over a claim of de facto parentage rights are unpersuasive. Defendant proposed a four-part test to determine persons qualified as de facto parents and thus eligible to proceed in seeking parent-child contact.¹⁴ Such an approach was considered and rejected in Titchenal, insofar as the plaintiff in that case argued that “tests could be created to assure that only those third parties who have developed an intended and shared de factoparent relationship with a child could petition for visitation.” 166 Vt. at 382, 693 A.2d at 687. Indeed, we seriously doubted that the practical ramifications of such a test were workable:

Although we might recognize new legal rights that would permit the superior court to extend its equitable jurisdiction, jurisdiction should not rest upon a test that in effect would examine the merits of visitation or custody petitions on a case-by-case basis. In reality, such a fact-based test would not be a threshold jurisdictional test, but rather would require a full-blown evidentiary hearing in most cases. Thus, any such test would not prevent parents from having to defend themselves against the merits of petitions brought by a potentially wide range of third parties claiming a parent-like relationship with their child.

Id. at 382, 693 A.2d at 687-88. Thus, any live-in member of a household with children would be eligible to plead the foundational facts for parent-child contact and claim family court jurisdiction, irrespective of whether the family court actually determined the person satisfied the requirements of such a test. Defendant’s process would require legally recognized parents to answer and defend against third-party claims for child contact or custody at the threshold jurisdictional hearing. While some courts have opened their doors to these claims, we remain disinclined to follow suit absent an imperative from the General Assembly, lest every domestic break-up with children in the household become a potential battleground for child visitation and custody by ex-paramours, or even mere cohabitants.

¶ 28. Vermont .cases before Titckenal do not, as defendant argues, presage a different conclusion. Defendant looks to Paquette v. Paquette and Miles v. Farnsworth to support his jurisdictional claim. The cases are cited out of context, and are inapposite.

¶ 29. Defendant seizes upon dicta in Paquette to the effect that “extraordinary circumstances may exist that would justify an award of custody to a nonparent,” 146 Vt. at 91, 499 A.2d at 29. But the holding of Paquette interpreted a then-existing statutory provision, 15 V.S.A. § 652, which governed custody orders for “any minor child of the marriage,” id. at 86, 499 A.2d at 26 (emphasis added), as allowing an award of child custody to a stepparent if it was “shown by clear and convincing evidence that the natural parent is unfit or that extraordinary circumstances exist to warrant such a custodial order.” Id. at 92, 499 A.2d at 30. Defendant is not a stepparent by marriage, and thus is not aided by Paquette.

¶ 30. We also find unavailing defendant’s reliance on Miles v. Farnsworth, 121 Vt. 491, 160 A.2d 759 (1960), to support his argument that entirely unrelated third parties may be awarded custody in the absence of statutory authorization. In Miles, parties to a divorce stipulated to father’s custody of a minor child, provided that the child lived at the home of the paternal grandparents. The particular issue on appeal was whether mother demonstrated the necessary change in circumstances to warrant modification of the child custody order. Id. at 493, 160 A.2d at 760. The trial court awarded custody to the mother, following her remarriage, based on her and stepfather affording her son an excellent home, training and beneficial influences in the face of the natural father’s failure to properly supervise the child. Id. at 495, 160 A.2d at 761-62. As to grandmother’s interest, the court noted she was “actually a third person to this marriage relationship” and that “[a]s between a mother and a third party the mother must prevail in a custody case, in the absence of compelling reasons to the contrary which are not present here.” Id. at 495, 160 A.2d at 761. Defendant correctly observes that the Court evaluated the grandmother’s love and inevitably waning ability to care for the boy, id. at 494, 160 A.2d at 761, but the crux of the case was that mother established a change of circumstances sufficient to alter the custody order. Id. at 495, 160 A.2d at 762. To the extent that Miles considered third-party rights, it concluded that short of extraordinary circumstances, a mother’s rights as a natural parent trumped third-party, and even grandmotherly, interests in the custody of the child. Id. at 494-95, 160 A.2d at 761-62. Assuming, for argument only, that Miles endorses court-ordered third party child contact in compelling circumstances, and assuming such a ruling could survive a Troxel challenge without a showing of parental unfitness, defendant fails to assert either mother’s unfitness or exceptional circumstances here.

¶ 31. Defendant seeks support also from Vermont statutes allowing third parties to take custody of children in certain circumstances. The legislation cited, however, concerns disposition, care and maintenance of children by the state child welfare agency “or to some person or suitable institution, as shall be equitable” where a parent is guilty of nonsupport or desertion, 15 V.S.A. §§ 209, 291. It is not at all plain that the statutes convey standing to any person to assert a custody claim, as opposed to authorizing the court to consider placement with a nonparent in dire circumstances. Even assuming, without deciding, that defendant could seek custody as such a person, the predicates of parental desertion or nonsupport are not presented here.¹⁵

¶ 32. Finally, defendant contends that the decisions in Titchenal and O’Connell-Starkey v. Starkey, 2007 VT 128, 183 Vt. 10, 944 A.2d 897, are inconsistent, allowing the state to force one unrelated person to financially support a child and forbid another unrelated person visitation with a child. Defendant argues that these decisions create a “void in Vermont law that would be properly filled by a decision that allows [defendant] to present evidence that he is the psychological father” of the children in this case. Defendant reads these cases as allowing “for an unmarried man to assume responsibility for a child, thinking it was his, help raise the child, agree to child support after the parties’ separation but then be forced to pay child support and lose standing to petition for custody if it was later determined that he was not related.” This proposition contorts the case law.

¶ 33. In Starkey, the plaintiff gave birth to a child while cohabiting with the defendant. The parties married afterwards and subsequently divorced seven years later. The final divorce decree adopted the parties’ stipulation that the child was of the marriage, thereby establishing legal parentage of both the plaintiff and the defendant. Some years later DNA testing revealed a ninety-nine percent probability that the defendant was not the child’s father, but the family court approved another stipulated settlement of the parties, which provided that the defendant was responsible for sixty percent of the child’s college tuition. Still later, the parties entered another agreement, approved by the family court, that the defendant was not the child’s biological father and thus had no legal or physical rights to the child. The agreement made no mention of the earlier order that the defendant was to pay sixty percent of the college tuition.

¶ 34. The defendant challenged his obligation to pay the tuition after the three-month divorce nisi period had run, arguing that he could not “be obligated to support the college education of a child to whom he is not biologically related and for whom he has relinquished all parental rights and responsibilities.” Starkey, 2007 VT 128, ¶ 17. Conceding that the final divorce order established parentage, the defendant argued that the agreement memorializing that he was not the child’s biological father negated his obligation to pay college tuition under the earlier child support order. Id. We rejected this argument because it overlooked the fact that a parentage determination in a divorce decree “is not open to collateral attack in a motion to modify child support. . . . [T]he final divorce order establishes parentage, and unlike parental rights and responsibilities and child support, the family court does not retain jurisdiction of parentage once the nisi period has run.” Id. ¶ 18.

¶ 35. Starkey lends no assistance to defendant because he has no final court order establishing parentage here. Biology is not everything in parent-child contact cases. See, e.g., Columbia v. Lawton, 2013 VT 2, ¶ 1, 193 Vt. 165, 71 A.3d 1218 (affirming conclusion that putative natural father lacked standing to proceed with parentage action because court already issued parentage order and constitutional considerations did not require otherwise). Yet, if anything, Starkey stands as another example where the basis for parental rights and responsibilities depends upon a legal connection to a child. Starkey turns on judgment finality against collateral attack and creates no exception, or inconsistency, to our refusal in Titchenal to extend jurisdiction to entertain a pseudo-parentage claim independent of any such order or legal relationship.¹⁶

III.

¶ 36. Defendant also challenges the family court’s issuance of a final RFA order denying him contact with plaintiffs children. Defendant’s brief does not address in any detail the trial court’s alleged error in issuing the final RFA order, except to point out that when the trial court checked the box “[djefendant shall have no contact with the minor children,” it included the hand-written note that “[djefendant is not their biological father.” To the extent defendant contests the final RFA order to assert a parentage claim over plaintiff’s children, 15 V.S.A. § 1103 is the wrong vehicle. “[T]he abuse prevention statute is aimed at providing immediate relief for abuse victims, not at determining the parties’ rights with respect to custody, support or property. . . . Accordingly, custody determinations are better resolved in proceedings concerning divorce, legal separation, parentage, or desertion and support.” Rapp v. Dimino, 162 Vt. 1, 5, 643 A.2d 835, 837 (1993).

¶ 37. Defendant’s more general objection to the RFA order’s terms, including the no-contact provision, cannot succeed in light of today’s holding that the family court lacks jurisdiction to review a legally unrelated defendant’s parentage and custody claims. Review of the issuance of an RFA order, and its terms, is deferential. “In matters of personal relations, such as abuse prevention, the family court is in a unique position to assess the credibility of witnesses and weigh the strength of evidence at hearing.” Raynes v. Rogers, 2008 VT 52, ¶ 9, 183 Vt. 513, 955 A.2d 1135. Accordingly, this Court reviews “the family court’s decision to grant or deny a protective order only for an abuse of discretion, upholding its findings if supported by the evidence and its conclusions if supported by the findings.” Id.

¶ 38. The RFA order and its terms are supported by the trial court’s findings. The trial court found that defendant placed plaintiff and her children in imminent fear of serious physical harm through his back-to-back 2 a.m. forays to plaintiff’s residence. The children were present during defendant’s repeated early morning bouts of banging on their door. The trial court also found that the supposed goal of these ventures — welfare of the children — could have been accomplished far more reasonably than by appearing on a woman’s doorstep at 2 a.m. after ensuring no other man is on the premises. These findings support the RFA order’s terms.

Affirmed.

1 Although Mr. Moreau is the defendant-appellant in docket 2012-154, he is the plaintiff-appellant in docket 2012-152. For the sake of clarity, Mr. Moreau will be referred to as defendant hereinafter.

2 Defendant also contends that the Common Benefits Clause of the Vermont Constitution supports his de facto parentage claim. Vt. Const, ch. I, art. 7. Defendant raises this argument for the first time on appeal and thus failed to preserve it for review. See In re Mullestein, 148 Vt. 170, 175, 531 A.2d 890, 893 (1987) (declining to consider appellant’s state constitutional argument when “it was not raised before the trial court, nor was that court’s decision based upon it. Issues not presented below will not be considered on appeal.”).

3 The dissent cites B.L.V.B. as exemplary of “look[ing] beyond” the text of a statute to further legislative policy to serve the best interests of children. Post, ¶ 58. B.L.V.B. did not turn, however, on the undisputed best interests of the child alone, but rather primarily on our refusal to adopt the “unreasonable and irrational result” of terminating the rights of a fit natural parent to allow adoption by her fit partner — a result not intended by the Legislature. 160 Vt. at 373, 628 A.2d at 1274 (quotation omitted). Here, in stark contrast to B.L.V.B., the parties do not want to share custody, the natural parent opposes defendant’s request for parental recognition, it is not established that the children’s best interests lie with defendant, and the per se denial of standing to defendant — who is not a biological, natural, adoptive, or even would-be adoptive, parent — to allow him to interfere with the biological mother’s rights over her children is not facially ridiculous. Moreover, in contrast to the situation in B.L.V.B., where the partner had statutory standing to petition for adoption in the first place, defendant enjoys no status as a “natural parent” necessary for standing absent an adoption or previous parentage adjudication. 15 V.S.A. § 302(a).

4 Following court unification in 2010, there is one superior court that includes the previous family and civil courts, now respectively designated as the family division and civil division. 4 V.S.A. §§ 1, 31, 33.

5 Notably, two justices dissented in Titchenal. The discord between the majority and dissent was not regarding de facto parentage as a jurisdictional basis — neither side supported such a rule. The dissent was in favor of embracing and applying an “equitable-adoption” concept, which would “allow a court to find, in retrospect, an intent to adopt by a person who had never formally done so, for the purpose of achieving a just result.” 166 Vt. at 388, 693 A.2d at 691 (Morse, J., dissenting). In any event, the concept as proposed was limited to cases, like in Titchenal, “in which a party allegedly failed to adopt because it was not a reasonable legal option. . . . [T]he holding would apply only to those who, like plaintiff, allegedly failed to adopt prior to the 1996 statutory changes in the adoption law,” which recognized the right of nonmarried cohabitants to adopt children together. Id. at 390, 693 A.2d at 692; 15A V.S.A. § l-102(a). Defendant here falls outside of any such circumstance.

6 Defendant filled out a standardized parentage complaint form indicating he sought an award of sole parental rights and responsibilities, but did not seek a finding that he was a parent of the children named in the complaint. That this was not a mere oversight in “checking off’ some boxes on the form, but not others, is evinced in his accompanying memorandum supporting the custody petition, wherein he never even cited the parentage statute let alone offered an argument that he could or should be considered a “natural parent” under that statute. Rather, he asks the court to award him parental rights and responsibilities under an equitable doctrine of in loco parentis (literally, “in the place of a parent”). Black’s Law Dictionary 791 (7th ed. 1999).

7 Further confirming the unavailability of a legal remedy, defendant posited that if he were more legally sophisticated he would have sought legislative action to afford a “legal opportunity to present his case for visitation.”

8 Indeed, defendant does not even cite the parentage statute in his brief, let alone make the argument that the phrase “natural parent” may include anybody this Court deems to be a parent under a judicially adopted test. Rather, defendant’s entire brief — like much of the dissent’s opinion — is aimed at weighing equities in favor of adopting such an equitable doctrine.

9 We need not address a statutory argument never raised by defendant, but we reject the dissent’s suggestion that our opinion is inconsistent with the plain language of Vermont statutoiy law and the Legislature’s intent. As we have noted before, putting aside the limited exception for stepparents, the purpose underlying the parentage statute was to allow putative “biological” fathers “to bring an action to determine paternity” of a child born to unmarried parents. Lawrence v. Limoge, 149 Vt. 569, 572, 546 A.2d 802, 804 (1988). This explains the use of the term “natural parent,” just as the same term was understood in B.L.V.B. to mean a biological parent. See 160 Vt. at 372, 628 A.2d at 1274 (explaining that adoption statute’s termination of rights of “natural parents” anticipated that adoption would remove children “from the home of the biological parents, where the biological parents elect or are compelled to terminate their legal obligations to the child”); see also Jenkins v. Palmer, 902 F. Supp. 180, 184 (N.D. Iowa 1994) (“[Cjommon usage dictates that the phrase ‘natural father’ be defined as biological father.”), aff'd in part, vacated in part, and remanded in 62 F.3d 1083, 1086 (8th Cir. 1995) (“The ‘natural’ father of a child commonly is understood to mean the child’s biological father.”); In re A.A., 7 Cal. Rptr. 3d 755, 759 (Ct. App. 2003) (“A natural father is one who has been established as a child’s biological father.”); Belsito v. Clark, 644 N.E.2d 760, 762 (Ohio Ct. Com. Pl. 1994) (“While various terms are used to identify a natural parent, a review of case law leads to the conclusion that ‘natural parent’ refers to the child and parent being of the same blood or related by blood.”).

10 Today’s decision neither forecloses nor supports the possibility of an equitable doctrine to determine parentage under specific circumstances, such as where two persons agree to conceive a child through artificial insemination. Cf. Debra H. v. Janice R., 930 N.E.2d 184, 205 (N.Y. 2010) (Smith, J., concurring) (suggesting allowing parental rights for same-sex couples who have • child through artificial insemination while living together, even if not married or joined in civil union).

11 Today, there are other assurances of parental rights for children bom into marriage or civil union. See Miller-Jenkins, 2006 VT 78, ¶ 48 (holding presumption of parentage in 15 V.S.A. § 308(4) applies to children bom from artificial insemination into marriage or civil union, regardless of biological connection or adoption).

12 Such ramifications could be far-reaching. Does recognition of a common law or equitable claim for parental contact by unrelated domestic partners include a corresponding right to claim child support from an unrelated but putative de facto parent? Can an unrelated but putative de facto parent then interfere with the biological parent’s decision to move away with his or her children? Will every relief-from-abuse proceeding present an avenue for defendant partners to counterattack with de facto parentage complaints?

13 The dissent repeatedly states that we depart from the modern trend toward judicially created de facto parenthood, but such a “trend” is not universally acknowledged. Even commentators advocating for the establishment or expansion of de facto parenthood recognize that courts around the country, including in recent decisions, are divided — indeed splintered — on this issue. See J. Grossman, The New Illegitimacy: Tying Parentage to Marital Status for Lesbian Co-Parents, 20 Am. U. J. Gender Soc. Pol’y & L. 671, 677-79 (2012) (noting that “a few states” grant de facto parents parity to legal parents, and that recognition of de facto parentage “is far from universal,” with several states rejecting it outright, including in recent decisions); C. Ball, Rendering Children Illegitimate in Former Partner Parenting Cases: Hiding Behind the Fagade of Certainty, 20 Am. U. J. Gender Soc. Pol’y & L. 623, 624 (2012) (comparing courts that granted or refused to grant standing for persons seeking parental rights based on de-faetoparentage status). Several courts, including courts of last resort in Maryland in a 2008 decision, New York in a 2010 decision, and Utah in a 2007 decision, have declined to judicially adopt de facto parenthood. See, e.g., Smith v. Gordon, 968 A.2d 1, 2-3 (Del. 2009) (superseded by statute) (concluding that person claiming to be de facto parent did not have standing to file petition for custody under relevant section of parentage statute); Wakeman v. Dixon, 921 So. 2d 669, 673 (Fla. Dist. Ct. App. 2006) (finding no statutory support for granting visitation or custody to persons claiming de facto parenthood); Janice M. v. Margaret K., 948 A.2d 73, 74-75 (Md. 2008) (holding that de facto parenthood is not recognized in Maryland and concluding that any person who would qualify for such status cannot obtain visitation or custody without demonstrating exceptional circumstances as prerequisite to court’s consideration of children’s best interests); White v. White, 293 S.W.3d 1, 11, 16 (Mo. Ct. App. 2009) (finding no standing to establish parental rights under parentage statute and rejecting equitable de-facto-parent and in-locoparentis arguments); Debra H., 930 N.E.2d at 192-94 (reaffirming its prior rejection of judicially created de facto parenthood and refusing to exercise its equitable powers to do so absent legislative action); Jones v. Barlow, 154 P.3d 808, 815, 819 (Utah 2007) (rejecting judicial adoption of equitable de-facto-parent and in-loeo-parentis doctrines to allow former domestic partner to obtain visitation rights); Stadter v. Siperko, 661 S.E.2d 494, 499 (Va. Ct. App. 2008) (refusing to adopt by judicial fiat equitable de-facto-parent doctrine).

14 Defendant’s test would confer jurisdiction when “(1) the natural or legal parent consented to and fostered the parent-like relationship, (2) the petitioner and the child lived together in the same household, (3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.” In re Parentage of L.B., 122 P.3d 161, 176 (Wash. 2005).

15 The other statute cited by defendant deals with assignment of “parental rights and responsibilities” arising out of annulment and divorce actions. 15 V.S.A. § 665. This provision calls on the trial court to evaluate parental rights and responsibilities vis-a-vis the best interests of children including their relationships with third parties. 15 V.S.A. § 665(b)(4), (6), (7). Defendant never entered into a legally-recognized spousal relationship with plaintiff; thus the statutes concerning spousal desertion, annulment, and divorce are inapplicable. If anything, defendant’s acknowledgement of the lack of a legal relationship in this case lends credence to the proposition that it is within the Legislature’s province to legally recognize de facto parents.

16 It is noteworthy that defendant’s claim is exactly the type of situation Titchenal foresaw with disapproval. Defendant reported that during his relationship with plaintiff, they looked into adoption, but did not follow through. Adoption was an option as contemplated in Titchenal, albeit, as defendant points out, an expensive and cumbersome one. Titchenal specifically rejected a proposal to accept “a wide variety of reasons for failing to adopt — lack of funds or fear of discrimination by the adoption agency, for example” as forming “the basis for the family court’s jurisdiction to resolve factual disputes” concerning a nonparent’s rights of custody and visitation with a legal parent’s child. Titchenal, 166 Vt. at 384, 693 A.2d at 689. Other than his clear preference for court intervention, defendant offers no reason why the Legislature is not equipped to consider his position, and its potential policy implications, and fashion a solution if appropriate.