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IVF, In Loco Parentis, Child Support, and How It All Comes Together

Y Michael Yin, JD

GREEN V. CARTER, 2024-NCCOA-______ (2024).

Facts:  The case involves two women, Mother and Partner, who had an on-and-off romantic relationship and planned to have a child together through IVF. Although only one woman gave birth and was listed as the mother on the birth certificate due to Michigan law, both participated in selecting the sperm donor and jointly named the child. After their relationship ended, they moved to North Carolina.

Legal proceedings ensued, resulting in a joint legal and physical custody arrangement for their child, Alisa. One of the partners later filed for child support, arguing that the other had acted as a parent to Alisa (in loco parentis) and should share financial responsibility. The trial court found both partners liable for support, considering various factors that indicated a parental relationship, despite objections based on biological parentage. The trial court ruled that North Carolina law applies equally to all parents, irrespective of gender or biological relation. The court ordered the non-biological partner to pay child support based on the North Carolina Child Support Guidelines. Partner appealed, and one argument advanced by Partner was that no writing was signed that made her secondarily liable.

Issue:  Was it an error on the part of the trial court to find that Partner should owe a duty of child support based on her standing in loco parentis?

Holding:  Yes.

RationaleMother argued that Partner is secondarily liable for child support based on Partner’s standing in loco parentis. “In loco parentis” means that a person has taken on the status and obligations of a parent without formal adoption. Our statutes provide that those standing in loco parentis may be secondarily liable for child support. However, that same statute also sets forth the requirements for holding a person in loco parentis liable: a judge is not allowed to require support to be paid by a person who is not the child’s parent or an agency, organization, or institution standing in loco parentis absent evidence and a finding that such person, agency, organization, or institution has voluntarily assumed the obligation of support in writing. While writings indicated that partner signed contracts with the in-vitro fertilization clinic regarding risks and rewards for the IVF process, those contracts explicitly stated that the parties consult with an attorney for any legal issues that arise from the process. Since no writing existed, partner cannot be secondarily liable.

Notes:  In any situation where a child is conceived using donor genetic material, and especially in these cases, it is highly advisable to speak to an family law specialist to determine what additional paperwork needs to be signed and drafted to address the legal responsibilities of the parties.