Thorndike v. Lisio

2017 ME 14, 154 A.3d 624
CourtSupreme Judicial Court of Maine
DecidedJanuary 19, 2017
DocketDocket: Kno-16-209
StatusPublished
Cited by2 cases

This text of 2017 ME 14 (Thorndike v. Lisio) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thorndike v. Lisio, 2017 ME 14, 154 A.3d 624 (Me. 2017).

Opinion

SAUFLEY, C.J.

[¶ 1] Jessica Ann Lisio appeals from a judgment of the District Court (Rockland, Raimondi, J.) finding that Tammy J. Thorndike is a de facto parent of two of Lisio’s biological children. We discern no error in the court’s determinations that Thorndike “has undertaken a permanent, unequivocal, committed, and responsible parental role in [each] child’s life,” and that “there are exceptional circumstances sufficient to allow the court to interfere with” the biological parents’ parental rights. Pitts v. Moore, 2014 ME 59, ¶ 27, 90 A.3d 1169 (quotation marks omitted). Accordingly, we affirm the judgment.

I. BACKGROUND

[¶ 2] The facts are drawn from the procedural record of the case and the court’s supported findings of fact. See Kilborn v. Carey, 2016 ME 78, ¶ 3, 140 A.3d 461. Lisio and Thorndike, who lives as a man, met in 2005 when Lisio’s son, Caden, was one year old. They began living together in Bath in August 2007. Thorndike was not working at the time because he had suffered a back injury. Lisio was working as a newspaper carrier. Thorndike cared for Caden while Lisio was working. He got the child ready in the morning, delivered him to and from preschool, bathed him, read to him, played with him, took him to medical appointments, and acted in all ways as a loving father to Caden.

[¶3] Thorndike and Lisio decided to have a child together in 2007 or 2008. Lisio arranged to be artificially inseminated, and she became pregnant with Arianna. She and Thorndike registered as domestic partners in early 2009, during the pregnancy. Arianna was born on May 11, 2009.

[¶ 4] Lisio returned to work about one week after Arianna was born. She began working as a certified nursing assistant and also maintained her paper route. Thorndike was a stay-at-home parent who did all the things a parent does — changing diapers, making bottles, being up at night with the baby, and continuing to take care of Caden. Thorndike also took care of housekeeping chores and attended Arian-na’s doctor appointments with Lisio. At those appointments, Thorndike presented himself as Arianna’s father. Lisio, Thorn-dike, and the two children did things together and functioned as a loving family.

[¶ 5] When Arianna was eight or nine months old, Thorndike and Lisio began having problems in their relationship. Lisio had a brief affair with another person, though the parties remained together and maintained the same parental roles. The couple decided to move to Wiscasset and make a fresh start. Thorndike began to work at a Rockland restaurant during the day, and Lisio, who had stopped delivering newspapers, worked as a CNA at night. Each of them cared for the children while the other was at work. The relationship continued to deteriorate, however, and Thorndike began a relationship with someone else and moved out in 2012.

[¶ 6] After moving out, Thorndike continued to call the children every day before bedtime, and the children visited him, though the parties disagree about how frequently. By the end of 2012, Lisio had a new boyfriend, Joshua Cote. Cote was working for a carnival and traveled seasonally in New England. Lisio would bring the children and stay with him during weekends. After Cote found out that Thorndike was transgender, Cote demanded that [626]*626Thorndike pay child support if he wanted to see the children. Thorndike made some payments but did not pay regular child support.

[¶ 7] During the last week of June 2014, while the children were visiting Thorndike for the weekend, Caden revealed to Thorn-dike that Cote had been hitting him, and Caden had bruises. Caden said that Lisio had said not to tell.

[¶ 8] Thorndike called his sister and organized a meeting with his parents and Lisio’s parents. At the end of the weekend, the children went to stay with Lisio’s parents, consistent with Caden’s wishes, and a report was made to the Department of Health and Human Services. The Department substantiated the report and opened an investigation. The children remained with Lisio’s parents until the end of 2014.

[¶ 9] Lisio was very angry with Thorn-dike for his role in reporting the abuse instead of talking to her about it. Lisio refused to allow any contact, even by phone, between Thorndike and the children after June 2014, taking the position that Thorndike had no rights. Thorndike was able to get some clothes to the children through Lisio’s mother, but that was the full extent of his contact with the children until the court entered a judgment requiring contact in 2016.

[¶ 10] On September 17, 2014, Thorndike filed a complaint for a determination of paternity and parental rights and responsibilities. Lisio opposed the complaint, arguing that Thorndike had no parental rights. The court (Mathews, M.) entered a case management order in November 2014 directing that a de facto parentage action complying with the requirements of Pitts, 2014 ME 59, ¶ 35, 90 A.3d 1169, must be filed and the complaint served on Caden’s biological father. In January 2015, Thorn-dike moved to amend his complaint to allege de facto parenthood and submitted an affidavit. See id.

[¶ 11] The next month, the court (Spara-co, J.) entered an order finding that Ca-den’s biological father had not yet been served and directing the biological parents to submit affidavits within twenty days after the biological father’s service. Due to issues of service on Caden’s biological father, the court proceeded to address Thorndike’s standing in October 2015 without service having been completed. See id. The court found that Thorndike had made a prima facie showing of de facto parenthood and therefore had standing. See id.

[¶ 12] Mediation was scheduled, and Ca-den’s biological father was served in Arkansas, where he is incarcerated. Caden’s biological father filed a letter with the court in January 2016 opposing Thorn-dike’s claim of de facto parenthood.

[¶ 13] After mediation, issues of de facto parenthood and the parties’ parental rights and responsibilities remained in dispute. The court (Raimondi, J.) held an eviden-tiary hearing on March 10, 2016. The court heard testimony from Thorndike and his sister, and from Lisio and Cote. The court found, by clear and convincing evidence, that Thorndike was a de facto parent. See id. ¶36. The court entered a parental rights and responsibilities order that provided for the children’s primary residence to be with Lisio, for the parties to share parental rights and responsibilities, for each party to refrain from doing anything to estrange the children from the other party, and for the children to have contact with Thorndike on a gradually increasing schedule that would ultimately place the children in his care every other weekend and one evening every other week. See id. ¶ 37.

[¶ 14] On April 20, 2016, Thorndike filed a motion to correct the findings of fact [627]*627•with respect to the court’s reference to a witness as Lisio’s sister when she is actually Thorndike’s sister. M.R. Civ. P. 52(b), 60(a). On the same day, Lisio filed her timely notice of appeal.

[¶ 15] After briefs had been filed in this appeal, we directed the court to act on Thorndike’s motion to correct. The court granted the motion and corrected the judgment to properly identify the testifying witness as Thorndike’s sister.

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Related

Maureen D. Davis v. Bennie C. McGuire III
2018 ME 72 (Supreme Judicial Court of Maine, 2018)
Tammy J. Thorndike v. Jessica Ann Lisio
2017 ME 14 (Supreme Judicial Court of Maine, 2017)

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Bluebook (online)
2017 ME 14, 154 A.3d 624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thorndike-v-lisio-me-2017.