## Facts

- Smith and Gordon were in a long-term same-sex relationship and lived together for several years.
- The couple agreed to adopt a child from Kazakhstan, but because they could not jointly adopt under Kazakh law, Smith alone completed the adoption of A.N.S. in 2002.
- After the adoption, Smith and Gordon raised A.N.S. together in Smith’s home for about 13 months.
- Gordon moved out in 2004 after the relationship deteriorated.
- Gordon filed in Delaware Family Court seeking a declaration of parental status and requesting custody/visitation, asserting (1) legal parentage under the Delaware Uniform Parentage Act (DUPA) and (2) de facto parent status.
- Smith moved to dismiss, arguing Gordon lacked standing to seek custody because she was not a “parent” under 13 Del. C. § 721(a).
- The Family Court rejected Gordon’s DUPA legal-parent theory but held she was a de facto parent and, on that basis, awarded joint legal and physical custody to Smith and Gordon.

## Issues

1. Whether a person who is not a legal parent under DUPA may qualify as a “parent” with standing to commence a custody proceeding under 13 Del. C. § 721(a) based on de facto parent status.
2. Whether the Family Court could award joint legal and physical custody to a de facto parent who lacked statutory standing as a “parent.”

## Decision

- The Delaware Supreme Court reversed and remanded.
- Because Gordon did not cross-appeal the Family Court’s ruling that she was not a legal parent under DUPA, that determination was treated as settled on appeal.
- The court held that a de facto parent is not a “parent” for purposes of standing under 13 Del. C. § 721(a).
- Since standing under § 721(a) was not satisfied, the Family Court lacked authority to award Gordon joint legal and physical custody.

## Legal Principles

- Standing to commence a custody proceeding under 13 Del. C. § 721(a) is limited to those who fall within the statute’s term “parent.”
- Where the legislature has established a comprehensive statutory scheme defining parentage (including DUPA), courts may not expand the statutory meaning of “parent” by recognizing an additional judicial category for custody standing.
- An unappealed trial-court determination (here, that a party is not a legal parent under DUPA) constrains the issues available on appeal.
- If a party lacks statutory standing to invoke the custody statute, an award of custody to that party cannot stand.

## Conclusion

The Delaware Supreme Court held that de facto parent status does not confer standing as a “parent” under 13 Del. C. § 721(a), reversed the joint custody order, and remanded for further proceedings consistent with the statutory limits on who may initiate custody litigation.


Smith v. Gordon, 968 A.2d 1 (Del. 2009)