No.

2022 AP 000260

IN THE SUPREME COURT OF CAPITANIA

CARRIE FULLER,
Plaintiff-Petitioner

v.

PALLAS JOYNER
Defendant-Respondent

On Writ of Certiorari to the

Court of Appeals of Capitania
Thirteenth Judicial District

BRIEF FOR THE PETITIONER

Chacyra Thompson, Partner

Toney Nathaniel Dixon, Partner
Attorneys for Plaintiff/ Petitioner
Carrie Fuller

`
Capital Legal PLLC
303 E. Broad Street
Columbus, OH 43201
(614)-236-5555
 TABLE OF CONTENTS
Table of Contents........................................................................................................i
Table of Authorities..................................................................................................iii
Questions Presented...................................................................................................1
Statement of the Case................................................................................................2
A. Factual Background.........................................................................................2
B. Procedural History...........................................................................................6
Summary of Argument..............................................................................................7
Argument...................................................................................................................8
I. A Third-Party May Not Seek Visitation Under 31 Cap. Rev. Code § 2238.012
As The Child’s De Facto Parent; Therefore, Joyner Is Not A.F.’S De Facto Parent. 8
a. The Lower Court Erred In Not Interpreting The Governing Statute Based On
It’s Plain Language....................................................................................................8
b. The Lower Court Erred In Two Ways Using The De Facto Parent Test
Applied....................................................................................................................10
1. Include persuasive heading............................................................................10
2. Include persuasive heading............................................................................12
c. The Court’s Interpretation Is A Dangerous Policy............................................13
II. Fuller’s Constitutional Rights As The Biological Parent Of Af Were Violated
By The Lower Courts By Granting Visitation To The Unrelated Appellee Absent
Examination Or Findings........................................................................................15
a. The Lower Courts Violated Ms. Fuller’s Liberty To The Care, Custody, And
Control Of A.F. By To Misapplying The Presumption That Fuller Acts In The Best
Interest Of A.F.........................................................................................................16
b. The Lower Courts Failed to examine if the STATUTE presented a
compelling-government interest for Capitania to....................................................17
Conclusion...............................................................................................................18
Certification.............................................................................................................18

i
 TABLE OF AUTHORITIES

Cases
Troxel
Basciano
In re Bonfield
EN v TR

Statutes
31 Capitania xyz

Other Authorities
EN v TR

ii
QUESTIONS PRESENTED
1. Was the Appellee, as a third-party sharing no familial relationship
through blood or marriage, erroneously granted visitation rights of A.F.
under 31 Cap. Rev. Code §2238.012, as A.F.’s de facto parent?

2. Consistent with the Due Process clause of the State and Federal
Constitution, did the lower courts violate Fuller’s rights as the biological
parent of A.F. when the courts required one-party consent for the third-
party Appellee to obtain de facto parenting status?

1
STATEMENT OF THE CASE

A. Factual Background
Ms. Fuller, at the time of A.F.'s birth and until the end of 2021, was the

head of cardiology at Capitania Children’s Hospital. (R. at 2, 4). After Francisco

was diagnosed with lung cancer in October of 2021, and once they became

aware Francisco’s treatments were unsuccessful, A.F.'s parents decided it

would be in A.F.'s best interest that Ms. Fuller take primary custody of A.F. in

preparation for Francisco's inevitable death. (R. at 4). In preparation for the

many changes A.F. was soon to face, Ms. Fuller took full custody of A.F. in

November 2021, retired from her role as head cardiologist at the hospital, and

made a complete career change for more reasonable hours so she could be

A.F.'s primary caregiver. In response to this transition, the GAL reported to the

lower court that A.F. was doing well under Ms. Fuller's care, and the transition

was successful. (R. at 4). Now, after Ms. Fuller sacrificed so much to step in

and be the best parent and caretaker for A.F., she has been blindsided by

unknown allegations and is now in a custody battle with the woman she hired

and trusted to be A.F.’s caretaker.

Appellee Joins the Picture

A.F., at the filing of this suit, was a 4-year-old child to her parents,

Francisco (father) and Carrie (mother) Fuller. Francisco and Ms. Fuller married

in December 2016, five years after dating. Almost a year later, on October 2,

2017, Ms. Fuller gave birth to A.F. (R. at 2). Following her birth, due to Ms.

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Fuller being the head of cardiology, Ms. Fuller needed to return to work.

Initially, A.F.'s childcare arrangement was not of concern since Francisco

owned his own production company, which allowed him to work from home

most of the time. Therefore, Francisco was able to provide most of A.F.’s day-

to-day care, which included educational programming, therapy, and more due

to her developmental delays. (R. at 2). At the time, Pallas Appellee, the

Appellee, worked for Francisco as his assistant. Appellee also had an

undergraduate degree in early childhood development and sought a graduate

degree specializing in early childhood speech development. Rather than

bringing in a stranger to help with childcare, A.F.’s parents already knew and

trusted Appellee; in addition to their knowledge of her expertise, Francisco and

Ms. Fuller began asking Appellee to provide childcare for A.F. (R. at 2, 3). As

Appellee stated, she was eager to generate extra income because she needed

the extra money to help pay for graduate school. (R. at 3). Due to this

arrangement, in addition to financial compensation, Francisco and Ms. Fuller

allowed Appellee to lease the apartment above their detached garage at a

discounted rate so that Appellee could provide A.F. childcare when her parents

needed it. (R. at 3).

The Fullers’ Divorce

The Fullers began experiencing marital difficulties in early 2019. In

June, Ms. Fuller decided to move out of the marital residence, and by the end

of March 2020, the Fullers were able to dissolve the marriage amicably. (R. at

3). The shared parenting agreement dictated that Francisco and Ms. Fuller

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would divide the time A.F. spent with each of them evenly. However, because

the children's hospital would call Ms. Fuller in for cardiology emergencies, she

unfortunately would have to adjust the parenting schedule at the last minute

sometimes. (R. at 3). Therefore, Ms. Fuller would typically have A.F. two

weekends each month and one night during the week unless called away on a

last-minute emergency. Francisco would ultimately accommodate these

changes because, throughout the separation and dissolution of the marriage,

Appellee continued to provide childcare for A.F. (R. at 3). The Fullers believe

Appellee's educational background contributed to the benefits A.F. was

receiving with Appellee continuing in the childcare provider role. Both

Francisco and Ms. Fuller encourage Appellee to use her expertise and growing

knowledge in the field to conduct home therapy exercises with A.F. (R. at 3, 4).

Changing Roles

Mr. and Ms. Fuller's dissolution agreement contained a provision that

they would share the childcare expenses equally, which Ms. Fuller continued

paying Francisco until he died in 2021. (R. at 5). Throughout this timeframe,

unbeknownst to Ms. Fuller, she was paying Francisco her contribution towards

A.F.'s childcare expenses, yet he and A.F.'s childcare provider, Appellee, began

a romantic relationship in July 2019. (R. at 4). Once this secret relationship

began, Appellee used her dual role as Francisco's girlfriend and A.F.'s live-in

childcare provider to spend more time with A.F. At the same time, Appellee and

Francisco intentionally hid this from Ms. Fuller. Appellee testified that the

relationship was so serious that she eventually moved into the home with

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Francisco and A.F. full-time around April or May 2020. At that time, she

stopped accepting payment for A.F.'s childcare. (R. at 4, 5). Appellee's close

friend testified that Appellee began referring to her role privately as that like a

stepparent (R. at 6). However, she complained about having to take care of A.F.

(R. at 6).

Despite Appellee's testimony alleging that she moved in full-time with

Francisco and A.F., evidence at the trial revealed that almost one year after she

said she moved into the house, another garage lease was executed that was to

run from February 2021 to February 2022. (R. at 4, 5). There was also

additional evidence showing that at the time of Francisco's death, most of

Appellee's personal belongings were not in the house she said she had been

living in for almost two years. Still, they remained in her garage apartment. (R.

at 5). Appellee also testified that after moving into the home, Francisco would

refer to Ms. Fuller, A.F.'s mother, as "her," "the woman who shall not be

named," or A.F.’s "part-time mom" and encouraged A.F. to refer to Appellee as

"mommy." All of this, we can infer, was done out of spite towards Ms. Fuller for

wanting to have a demanding career in addition to being a mother and trusting

that when she was away, Francisco or the caregiver, she paid to do a job in her

absence would competently do so. (R. at 5)

During cross-examination, Appellee disclosed to the court that in August

2020, she and Francisco began commingling their funds and had a joint

checking account. Although Appellee contends Francisco never directly paid

her for her caregiver role after she moved in, the fact that he still accepted Ms.

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Fuller's portion of A.F.'s childcare expenses every month, shared funds in an

account with Appellee which Appellee has testified they used for common

expenses, she indirectly continued to be compensated for being A.F.'s

caregiver. (R. at 5). The court was also unable to decipher whether the checks

she did continue to receive were strictly from her work as Francisco's assistant,

as she stated, or from her providing A.F. with childcare. (R. at 5, 6).

As it is not unusual for the childcare provider to be alone with the child

entrusted into their care, Ms. Fuller testified that she was never aware that

Appellee had taken on a more significant role in A.F.'s life until the filing of this

suit, even though she noticed that A.F. would be with Appellee at the home

sometimes when she picked him up. (R. at 6). The intent behind filing this suit

should be of concern when determining what is truly in the best interest of

A.F., having healthy and stable relationships at this time. Following the death

of Francisco, even though Ms. Fuller didn't need Appellee as much for

childcare, Ms. Fuller still encouraged a relationship between Appellee and A.F.

(R. at 7). Ms. Fuller attempted to arrange a total of five visits between the two

where Appellee could come to the home and spend time with A.F. Of those five

attempts made by Ms. Fuller, Appellee showed up on only two occasions and

then filed this suit. Moreover, the month before the commencement of this

action, Appellee accepted payment to babysit A.F. in January 2022. (R. at 7).

B. Procedural History
This is an appeal from a final order.

6
 On February 23, 2022, in the Bowen County Court of Common Pleas,

Domestic Relations Division, Appellee Pallas Appellee, pursuant to §2288.012,

petitioned the court for visitation of AF. the trial court found that the cited

statute does not provide standing for persons not biologically- or legally related

to the child, and that the Capitania statute that the legislature created

intended to include DFP. (R. at 10). The lower court adopted the four-part test

from the Wisconsin Supreme Court in Holtzman v. Knott (In re H.S.H-K), 533

N.W.2d 419 (wis. 1995); it held that there was a parent-like relationship

between Appellee and A.F and granted Respondent visitation rights (R. at 8 and

10).

There was one dissent to the majority opinion by Judge Reasonable. This

judge said that the majority erred in adopting the de facto parenting status and

that the Court was making social policy—a task dedicated to the legislative

branch. (R. at 20). Also, the dissent indicated that Fullers Due Process rights

under the Fourth Amendment were violated. Id. The dissent stressed that the

majority failed to apply the presumption that Fuller was not unfit, nor that

exceptional circumstances applied. (R. at 22).

SUMMARY OF ARGUMENT
There was one dissent to the majority opinion by Judge Reasonable. This

judge said that the majority erred in adopting the de facto parenting status and

that the Court was making social policy—a task dedicated to the legislative

branch. (R. at 20). Also, the dissent indicated that Fullers Due Process rights

7
under the Fourth Amendment were violated. Id. The dissent stressed that the

majority failed to apply the presumption

ARGUMENT
Something should go here as a roadmap paragraph. Brief introduction

to both our stuff.

I. A Third-Party May Not Seek Visitation Under 31

Cap. Rev. Code § 2238.012 As The Child’s De Facto
Parent; Therefore, Joyner Is Not A.F.’S De Facto
Parent.
Something should go here as a roadmap paragraph. Brief introduction

to both YOUR stuff.

A. The Lower Court Erred In Not Interpreting The

Governing Statute Based On It’s Plain Language.
The lower court erred in not interpreting the applicable statute based on

its plain language, therefore this court should overturn the lower court’s ruling

and find that Petitioner is not entitled to visitation rights of A.F. Based on the

plain language of 31 Capitania Revised Code § 2238.012, Petitioner does not

have standing to seek visitation rights of A.F. 31 Cap. Rev. Code § 2238.01

states, “upon petition by a grandparent, great grandparent, stepparent, or

other family member, the court may grant reasonable visitation rights to that

person if the parents have notice of the hearing and if the court determines

that visitation is in the best interest of the child. “In interpreting the plain

language of the statute, we must take pains to avoid any overly simplistic or

overly broad interpretation…that wreaks havoc on, rather than preserves the

legislative intent.” Dickau v. Vt. Mut. Ins. Co., 107 A.3d 621, 621 (Me. 2014).

8
“…We must interpret the plain language by taking into account the subject

matter and purposes of the statute, and the consequences of a particular

interpretation.” Id. Some states, like Minnesota and Connecticut, have included

this rule in their statutes to provide further clarification to courts. “When

interpreting a statute, the court must ascertain and effectuate the intention of

the legislature. In doing so, the court first determines whether the statute’s

language, on its face, is ambiguous. A statute’s language is ambiguous only

when its language is subject to more than one reasonable interpretation.”

Minn. Stat. § 645.16. Here, Cap. Rev. Code § 2238.01 is not ambiguous. It

provides a list of those who the statute is intended to apply to. Capitania

Revised Code §2238.01 goes even further to define stepparent for clarification,

stating “Stepparent means a stepfather or stepmother, who is a person who

marries the child’s biological or adoptive parent and shares no biological

relationship to the child.”

In the lower court’s analysis, they argue that because family member is

not defined in the statute, and based on the language of the statute, they find

that the legislative intent was not to require a blood relationship between the

third-party and child, but anyone who shared a familial relationship with the

child. “The meaning of a statute shall, in the first instance, be ascertained from

the text of the statute itself and its relationship to other statutes. If, after

examining such text and considering such relationship, the meaning of such

text is plain and unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meanings of the statute shall not be

9
considered.” Conn. Gen. Stat. §1-2z. Here, Capitania’s statute is plain and

unambiguous. Capitania legislature also expressly included third parties, such

as adoptive parents, sharing no blood relation in the stepparent statute.

Because the plain language rule uniformly amongst different states tells us

that interpretation of a statute must only be done when encountered with

ambiguous terms, and here there has been no showing that Capitania’s statute

contains any ambiguous terms that needed to be interpreted, this court should

follow this same rule and find that Capitania’s statute should have been

interpreted on its face, using its plain language. Therefore, because the statute

is unambiguous and the plain language only grants standing to “great

grandparents, grandparents, stepparents or other family members”, the lower

court erred in ruling in favor of Petitioner because she lacked standing to seek

visitation of A.F.

B. The Lower Court Erred In Two Ways Using The De

Facto Parent Test Applied.
Something should go here as a roadmap paragraph. Bried introduction

to this stuff—your two things. Since you have two lower arguments. I

separated them into the sections you see below. I did not change any of the text

however).

1. Include persuasive heading

The term “de facto parent” means “parent in fact” and is used to describe

a party, other than a child’s legal parent, i.e., biological, or adoptive parent,

who claims custody or visitation rights based upon the party’s relationship

10
with a non-biological, non-adopted, child. E.N. v. T.R., 255 A.3d 1, 346 (Md.

2021).

First, the lower court erred in adopting the de facto parent test that they

applied in this case. In light of the lower court applying a minority test, this

court must reject that test, apply the majority test, and find that Petitioner is

not a de facto parent. The test that the court should have applied provides

that, a de facto parent is an individual other than a legal parent or a parent by

estoppel who,

(1) for a significant period of time, not less than 2 years

(i) lived with the child; and
(ii) for reasons primarily other than financial compensation
(2) with the agreement of a legal parent formed a parent-child relationship or as
a result of a complete failure or inability of any legal parent to perform
caretaking functions
(i) regularly performed a majority of the caretaking functions for the
child, or
(ii) regularly performed a share of caretaking functions at least as great
as that of the parent with whom the child primarily lived.

LP v. LF, 338 P.3d 908, 152 (WY 2014).

Here, the test used by the lower court provides,

(1) That the biological or adoptive parent consented to, and fostered, the
petitioner’s formation and establishment of a parent-like relationship
with the child;
(2) That the petitioner and the child lived together in the same
household;
(3) That the petitioner assumed obligations of parenthood by taking
significant responsibility for the child’s support, without expectation of
financial compensation; and
(4) That the petitioner has been in a parental role of a length of time
sufficient to have established with the child a bonded, dependent
relationship parental in nature.

Opinion and Order at 8, Fuller v. Appellee, No. 2022 AP 00260 (13th Dist. Oct.
1, 2022).

11
 The key difference is that rather than leaving the requisite amount of

time to satisfy the test open to interpretation, Wyoming as well as other state

courts such as Washington, include the specific length of time required to

satisfy the test. The Wyoming test is much for just in delicate situations like

this, because it leaves no room for conflicting interpretations on what amounts

to a “sufficient” length of time. It also helps to prevent an influx in similar

cases by providing a clear standard to meet. Because of the clarification

provided by the Wyoming test, and that it is more commonly followed by State

courts, the court erred in not applying it to this case.

2. Include persuasive heading

Secondly, even if the test the court adopted were to be upheld, the court

erred in finding that Appellee met every element of this test. Element (2)

requires that the petitioner and the child live together in the same household.

The opinion and order of the court states evidence at trial showed that the

most recent garage lease ran from February 2021 to February 2022 and at the

time of Francisco’s death, many of Joyner’s personal belongings remained in

the garage apartment. Id. at 4-5. However, Joyner testified to the court that she

began living in the house with Francisco and A.F. around April or May 2020.

Almost a full year after she alleges, she moved into the home with A.F., she

renewed her garage apartment lease. Because the tangible evidence before the

court contradicted the testimony provided by Joyner, which she never

explained, the court erroneously held that Joyner satisfied this element.

12
 Element (3) requires that the petitioner had assumed obligations of

parenthood by taking significant responsibility for the child’s support, without

expectation of financial compensation. One month before filing this action,

Joyner accepted payment to babysit A.F. Joyner will argue that she tried to

deny it but ultimately, she still took the money. Because Joyner babysat A.F. in

exchange for compensation, regardless of what she did in the past, she cannot

be considered as taking on responsibility as a parent without financial

compensation. Therefore, the court erred in finding that Joyner met this

element.

Element (4) requires the petitioner to have been in a parental role of a

length of time sufficient to have established with the child a bonded, dependent

relationship parental in nature. Joyner has been working with A.F. for years as

her nanny. A significant amount of time to bond with anyone. The role she was

hired to be in has never changed. She was hired to do the activities she is now

alleging grant her de facto parent status. The bond she built with A.F. began

because she assumed the obligations of a live-in nanny. Now, after building

this relationship with A.F. through her employment because she switched from

nanny to mistress the court found that she met this element. A.F. moved full-

time with Ms. Fuller in November 2021 and only saw Joyner three times from

then until the filing of this suit in February 2022. Yet, the GAL testified that

A.F.’s transition to being with Ms. Fuller full-time was successful. Because the

actions in the different “roles” never changed, the relationship that this element

is based on was established and built on Joyner being a nanny, and there is no

13
evidence supporting that A.F. is dependent on this relationship, the court erred

in finding this constituted a dependent parental relationship.

C. THE COURT’S INTERPRETATION IS A DANGEROUS

POLICY.
The court’s erroneous interpretation of the statute and finding in favor of

Appellee threatens the very policy Capitania intended to protect in creating the

statute as they did. By interpreting the statute as legislature’s intent to grant

the right to seek visitation to anyone who shares a familial relationship with a

child the court is threatening many policy reasonings for the limitations within

the statute.

First, providing parents with a superior ability to influence the

upbringing of their child is clearly in the best interests of the child. By

diminishing the likelihood of struggle between parents and others close to the

child with whom the parents are at cross-purposes, the parental preference

minimizes the likelihood the child will be exposed to hostility between those

with whom he or she has a strong attachment, which can cause distress,

create loyalty dilemmas and be disruptive of the child's socialization

experiences. In re Marriage of Gayden, 229 Cal.App.3d 1510, 280 Cal.Rptr. 862

(1991). From the Plaintiff’s testimony alone, we can infer that when Francisco

taught A.F. to call Appellee “mommy”, it was out of spite towards Ms. Fuller as

she alleges, he also addressed Ms. Fuller by other names such as “her”, “her

who shall not be named” and “part-time mommy” to A.F. in this same scenario

she spoke of. In every case in which a court order has the effect of disrupting a

relationship between a child and a parent, the question surely will arise

14
whether it is in the best interest of the child. Youmans v. Ramos, 429 Mass.

774, 711 N.E.2d 165 (1999). Setting this precedent will open the door for

similar cases from girlfriends of a child’s deceased father. It would even allow

ex-girlfriends with ill intentions towards the child’s parents to seek visitation.

The amount of danger this would place children in would be catastrophic, not

to mention the family dynamics that would be ruined.

Second, this type of ruling would allow live in nannies to married couples

who are having a secret affair with a child’s father to seek visitation rights. All

they would have to prove is that when the wife wasn’t home the husband told

the child to call the nanny “mommy,” the husband actually wasn’t paying the

nanny because they were having a secret affair, and that the nanny in her role

grew a bond with the child. Imagine the chaos that would create. If Capitania

legislature intended to include girlfriends in the statute, they would have been

listed next to stepparents or they would have been mentioned in the statutory

definition of stepparents.

It is for these reasons that the court must find that Appellee as an

unrelated third-party cannot seek visitation rights of A.F. and she does not

qualify as a de fact parent.

15
 II. Fuller’s Constitutional Rights As The Biological
Parent Of AF Were Violated By The Lower Courts
By Granting Visitation To The Unrelated Appellee
Absent Examination Or Findings.
Appellant Fuller hold protected liberty rights as A.F.’s biological parent

as a citizen of Capitania which are guaranteed by the us constitution, and she

is free to personally decide how to parent and care for AF.

The Court has held that personal freedom of choice among marriage and

family life is one of the liberties that is protected by the Due Process Clause of

the Fourth Amendment, and that family life is a “private realm . . . which the

state cannot enter.” Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 499

(1977) (citing Prince v. Massachusetts, 321 U.S. 158, 166). The family is not

exempted from government regulation however, but the government’s interest

in the regulation must be carefully examined to find if its interest is served by

the regulation. Id. Limits on Due Process rights must not be arbitrary and are

afforded based on the history and solid recognition of the values that underlie

our society. Moore at 503. As a result, the constitution protects family

because the institution of family is deeply rooted in the nation’s history and

tradition. Id.

Here, Fuller is the biological parent of AF and the primary caretaker of

AF. Appellee is the former fiancé of Fuller’s ex-husband Francisco whom she

never married, and she was awarded visitation of A.F. as a de facto parent by

the lower courts adopting 31 CAPITANIA STATUTE 2288.012 AND .031

16
without an analysis of whether the government had a compelling interest in

regulating Fuller’s family and those of Capitania.

A. The Lower Courts Violated Ms. Fuller’s Liberty To

The Care, Custody, And Control Of A.F. By To
Misapplying The Presumption That Fuller Acts In
The Best Interest Of A.F.
Ms. Fuller’s fundamental liberties protected by the Fourteenth

Amendment were violated by STATUTE because her rights to the care custody

and control were subverted by the statute in allowing Appellee visitation of AF.

A parents interest to the care, custody, and control to establish a home,

raise their children, and control their education is one of the oldest liberty

interests recognized by the Supreme Court. Troxel at 65 (citing Meyer v.

Nebraska 262 US 390, 399; Pierce v. Society of Sisters 268 US 510, 534-535).

Further, there is a presumption that parents

In E.N. v. T.R., the intermediate court found that the lower courts erred

in granting de facto parenthood to the fiancé of the child’s father because she

failed to establish the consent element required and that parents have a

fundamental right to govern the care, custody, and control of their children

because of this constitutional right. 474 Md. 346, 371. The court also held that

a child’s best interests are maintained by preserving parental rights and it is

presumed that parents act in the child’s best interest. Id.

17
 B. THE LOWER COURTS FAILED TO EXAMINE IF THE
STATUTE PRESENTED A COMPELLING-
GOVERNMENT INTEREST FOR CAPITANIA TO
The government of Capitania did not have a compelling interest in

overriding the decision of Fuller to the care, custody, and control of AF, and

violated her substantive due process rights.

“The Fourteenth amendment’s Due Process Clause has a substantive

component” that gives “heightened protection against government interference

with certain fundamental rights and liberty interest.” Troxville syllabus at 57

(citing Washington v. Glucksberg 521 U.S. 702, 720).

18
CONCLUSION

CERTIFICATION

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