DAVIS, Justice.
[¶ 1] Appellee LF sought a judgment determining that Appellant LP was not the biological father of KEP. Appellant claimed to be KEP's actual and presumptive parent, and that Mother's lawsuit was untimely. He also claims to be entitled to parental rights by virtue of de facto parentage or parentage by estoppel. The district court granted Appellee's petition to establish that Appellant was not KEP's father, and Appellant challenged that determination in this appeal. We affirm.
[¶ 2] Appellant presents a total of six issues, which we have distilled and rearranged.
1. Did the district court err in granting Appellee's petition to prove that Appellant was not KEP's biological father under the Wyoming Parentage Act?
2. Did the district court err in not finding that Appellant was a de facto parent, even if he was not KEP's biological parent?
3. Did the district court err in not finding that Appellant was a parent by estoppels, even if he was not KEP's biological parent?
[¶ 3] The facts of this case are disputed, and its procedural history is confusing.
[¶ 4] At a hearing dealing generally with this issue, Appellant testified that he had a sexual relationship with Mother during a time period when KEP could have been conceived. Mother, on the other hand, testified that she was "five months pregnant and showing" with KEP when she met Appellant. Genetic testing ultimately conducted and stipulated into evidence found that there was a 0.00% probability that Appellant is KEP's biological father. The district court found as follows concerning the claim that Appellant had a relationship with Mother at a time when he could be the father:
[¶ 5] It is undisputed, however, that Appellant was present when KEP was born, and that he is listed as the father on the child's birth certificate. The couple lived together when KEP was born. Neither party knew who filled out a worksheet that led to the issuance of the birth certificate. The parties agree that KEP was named after Appellant's twin brother and that he bears Appellant's last name, and Mother did not deny giving Appellant a ring inscribed with the word "Dad."
[¶ 6] The parties disagree on the length of time that they lived together in the Denver area, however. Appellant estimates it at twenty-one or twenty-two months, while Mother estimates it at about eighteen months. They agree that they moved to Spokane with KEP after living in Denver. Appellant estimates that they all lived together in Spokane for one to two months, while Mother estimates the time period at a month. Appellant claims to have paid most if not all of their living expenses during this time because he was the only one working, while Mother denies that he was the sole financial provider.
[¶ 7] After they had lived in Washington for a month or two, the couple decided to take a break from each other, which Appellant assumed would last for a couple of months. Mother left with the child for parts unknown, and did not communicate with him after she left. They never lived together after that separation.
[¶ 8] Appellant attempted without success to locate Mother and KEP through law enforcement agencies for a time. Mother later explained that she and KEP had been in a safe house in Longmont, Colorado for a week, and that they were then transferred to a safe house in Cheyenne, where they remained until she rented an apartment there. The record offers no explanation as to why they were staying in a safe house, which was presumably a facility for women and children who were threatened with violence.
[¶ 9] At some point, by means not identified in the record, Appellant and Mother made contact, and they and KEP met at the Cheyenne Walmart. Appellant bought things that KEP needed at that store. He then moved to Cheyenne and rented an apartment, and after four months moved to another apartment across the street from Mother. The child spent time with his mother and Appellant as he chose, although the record does not quantify how much time he spent with each.
[¶ 10] This situation continued for about five years. The parties once again disagree as to Appellant's contribution to KEP's support. He testified that he "supported" KEP, but did not explain what or how much support was provided. He testified that Mother contributed "very little" to the child's care. Mother testified, on the other hand, that Appellant "helped some, but not a lot" in paying KEP's expenses during this time frame.
[¶ 11] Mother filed a "Petition to Disprove Father-Child Relationship, or In the Alternative, Order Child Custody and Child
[¶ 12] Although the record does not contain a transcript of it, the district court held a hearing on March 6, 2012. On July 2, 2012, it entered an order finding that Appellant had not acknowledged paternity as provided for by Wyo. Stat. Ann. § 14-2-602, and that there was no presumption that he was KEP's father under Wyo. Stat. Ann. § § 14-2-504(a)(v).
[¶ 13] However, a proceeding seeking to disprove paternity can be brought at any time if the putative father did not cohabitate or engage in sexual intercourse with the mother at the probable time of conception, or if the putative father did not openly hold the child out as his own. Wyo. Stat. Ann. § 14-2-807(a) and (b) (LexisNexis 2013).
[¶ 14] On August 4, 2012, Mother physically attacked Appellant in his apartment, and KEP unfortunately became involved in the affray. Appellant obtained a domestic violence protection order
[¶ 15] In an Amended Pretrial Memorandum
[¶ 16] The district court held an evidentiary hearing to resolve any factual issues that same day. At the hearing, Appellant's counsel stipulated to the accuracy and admissibility of the genetic test the district court had ordered, and it was received in evidence. The parties testified as generally described above. There were numerous conflicts in the testimony, as we have noted. At no time during the hearing did Appellant claim that he was a parent by estoppel or a de facto parent under ALI Principles. He argued instead that he had entered into a common law marriage with Mother in Colorado, or that alternatively the district court had the equitable power to shorten the two-year period required to become a presumptive parent under Wyo. Stat. Ann. § 14-2-504(a)(v). The district court took the matter under advisement and gave the parties an opportunity to file additional briefs concerning equitable grounds for relief.
[¶ 17] On February 6, 2013, Appellant filed a pleading entitled "Motion Pursuant to Rule 60(b)(5) [sic] Modify or Rescind Order Based on Principles of Equitable Estoppel," which it supported with a brief. This pleading asked the district court not to enforce the order for genetic testing which had been entered almost seven months earlier, after the results had been received and entered into evidence at the January hearing. For the first time we can find in this record, he referred to the ALI Principles of the Law of Family Dissolution in the brief supporting this motion, stating that:
[¶ 18] However, Appellant argued that the district court (not Mother) should be estopped from enforcing the order because he earlier testified that he had held himself out to be the child's father since birth and had maintained a relationship with KEP.
[¶ 20] On August 8, 2013, the court entered an order requiring Appellant to return KEP to Mother in Wyoming, but the order also indicated that the court planned to hold a hearing five days before school began in Washington State to determine whether the child would return to Appellant in Washington or remain with Mother in Wyoming after that date. If that hearing was held, there is no transcript or order resulting from it in the record. On November 27, 2013, the district court entered a decision letter holding as follows:
[¶ 21] An order granting Mother's petition to disprove Appellant's father-child relationship was entered on January 6, 2014. Although the Rule 60(b) motion was not expressly denied, the tenor of the order makes it clear that the relief was not granted. The ruling did not mention de facto parentage or parentage by estoppel; perhaps this was because those theories were presented late.
[¶ 22] This appeal was timely perfected. Mother did not appear or file a brief. We permitted the National Association of Social Workers and the Wyoming Chapter of that organization to file an amicus brief.
[¶ 23] On April 18, 2014, Appellant filed a motion asking this Court to take judicial notice of certain pleadings in Wyoming guardianship proceedings related to KEP. That motion was granted. One of the documents of which we took notice is a stipulated order appointing Appellant to be KEP's guardian. In it, the parties stipulated that Mother "is unable to provide the necessary care for KEP and has requested that [Appellant] take guardianship of the minor child in order that the minor child may relocate to Washington with the [Appellant] and attend school and reside there."
[¶ 24] We address this issue first, because if Appellant is entitled to be adjudicated KEP's parent under existing law, we need not address the other theories he raises. We have recently summarized the standard of review applicable when a case has been tried to the district court:
Graybill v. Lampman, 2014 WY 100, ¶ 25, 332 P.3d 511, 519 (Wyo.2014) (quoting Helm v. Clark, 2010 WY 168, ¶ 6, 244 P.3d 1052, 1056 (Wyo.2010)).
[¶ 25] In its November 27, 2013 decision letter, the district court indicated that it had determined that Appellant was not presumed to be KEP's biological father following a hearing on March 6, 2012, but that the order implementing the oral ruling of that date was not approved and entered until July 2, 2012. If the hearing that resulted in the order was reported, no transcript of it is in the record.
Roberts v. Locke, 2013 WY 73, ¶ 27, 304 P.3d 116, 122 (Wyo.2013).
[¶ 26] Appellant must therefore rely upon a W.R.C.P. 60(b)(5) motion which is somewhat difficult to understand, but appears to argue that the order requiring paternity testing and finding that he was not a presumed parent was "no longer equitable." As already noted, this motion was filed after paternity testing was completed, after the district court held an evidentiary hearing on the issues Appellant identified in his pretrial memorandum, and after his counsel stipulated to the accuracy and admissibility of the paternity test at the evidentiary hearing.
Campbell v. Hein, 2013 WY 131, ¶ 8, 311 P.3d 165, 167 (Wyo.2013) (citation omitted).
[¶ 27] Appellant argues that he should be presumed to be KEP's father because he "substantially complied" with the statutory requirements of Wyo. Stat. Ann. § 14-2-504(a)(v). As noted in footnote 2, that statute provides as follows:
Wyo. Stat. Ann. § 14-2-504(a)(v).
[¶ 28] Appellant concedes that he and Mother lived together for only twenty-one months, which is of course less than two years, but argues that the district court should have overlooked the shortfall and presumed him to be KEP's parent. He argues that Mak-M v. SM, 854 P.2d 64, 68 (Wyo. 1993), requires only substantial compliance with the requirements of the Wyoming Parentage Act. Mak-M dealt with the rights of a presumed parent in a case in which the district
[¶ 29] Appellant evidently hoped that a presumption of paternity would render Mother's petition to prove that he was not the father untimely. However, the statute only creates a presumption, which "imposes on the party against whom it is directed the burden of proving the nonexistence of the presumed fact is more probable than its existence." Wyoming Rule of Evidence 301. Appellant stipulated to the accuracy and admissibility of a paternity test which conclusively proved that he could not be KEP's biological father and which therefore rebutted the presumption beyond any doubt. We therefore affirm the district court's implicit denial of that aspect of the Rule 60(b)(5) motion without further analysis.
[¶ 30] Appellant points out that the traditional biologically-based definition of parentage is undergoing a transformation in other states. Some jurisdictions have given parental rights to individuals who are not biological parents through application of the in loco parentis doctrine, as psychological parents, or as de facto parents or parents by estoppel.
[¶ 31] The first issue we must address is whether Appellant preserved these issues for review. We have held that we will not address issues which were not properly raised in the district court. Courtenay C. and Lucy Patten Davis Found. v. Colorado State Univ. Research Found., 2014 WY 32, ¶ 36, 320 P.3d 1115, 1126 (Wyo.2014) (quoting In re Guardianship of Lankford, 2013 WY 65, ¶ 28, 301 P.3d 1092, 1101 (Wyo.2013)). Appellant claims that he did raise them sufficiently in the Rule 60(b)(5) motion referred to above, and in the response to a renewed request for an order requiring him to return KEP to Wyoming.
[¶ 32] The Rule 60(b)(5) motion contended that the ruling calling for a paternity test was "no longer equitable." The order in question only determined that Appellant was not KEP's presumptive father and required genetic testing. It was not a final order, as the court intended to and did in fact hold a hearing to determine whether Appellant and Mother were in a common law marriage, consider whether there was some equitable basis to deviate from the strict requirements of the Wyoming Parentage Act, and presumably to consider the results of the paternity test. Platt v. Platt, 2014 WY 142, ¶ 27, 337 P.3d 431, 439 (Wyo.2014) (tentative or incomplete action is not final). The district court had not yet issued a ruling based on that hearing when the motion was filed.
[¶ 33] The motion can more accurately be considered one for reconsideration or consideration of another theory before judgment. Steranko v. Dunks, 2009 WY 9, ¶ 6, 199 P.3d 1096, 1097 (Wyo.2009) (prejudgment motions to reconsider, whether denominated as such or not, are valid in Wyoming).
[¶ 34] The district court described Appellant's theories as "evolving," and we certainly agree with that description. The theories were raised in the district court, but belatedly and not in a way conducive to fairness to the opposing party or in a manner calculated to assure that the district judge had a full opportunity to consider them. The theories should have been identified in pretrial documents, and the evidence presented at the January 23, 2013 hearing should have been tailored to their elements and explained through cogent argument, which did not occur. The record is barren of any indication that Appellant's counsel requested further hearings to present or explain evidence to support these theories after January 23, 2013. Mother's attorney presented evidence to address the issues Appellant did identify prior to the hearing.
[¶ 36] De facto parents are defined in § 2.03 of the ALI Principles of the Law of Family Dissolution:
ALI Principles of the Law of Family Dissolution § 2.03 (2002 updated 2014).
[¶ 37] Other states have adopted statutes allowing stepparents or siblings to seek visitation. Atkinson, supra, at 7-8. The Washington Supreme Court judicially adopted de facto parentage in In re Parentage of L.B., 155 Wn.2d 679, 122 P.3d 161 (2005). In that case, two women, Page Britain and Sue Carvin, were in a committed relationship. They decided to have a child. Britain was artificially inseminated and delivered L.B. Carvin took an active role in parenting L.B. Britain and Carvin's relationship ended acrimoniously when L.B. was six. Id. at 164.
[¶ 38] The Washington Supreme Court held that Carvin was entitled to rights as a de facto parent if she could prove the following:
Id. at 176. The Washington Court relied upon an earlier Wisconsin decision employing basically the same criteria. Id. at 173-74 (citing In re Custody of H.S.H.-K., 193 Wis.2d 649, 533 N.W.2d 419 (1995)).
[¶ 39] Justice Johnson dissented, joined by Justice Sanders, contending that the decision was an unconstitutional incursion on the rights of the adoptive mother, and that it violated a "detailed and complete statutory scheme" and created a new method of determining parentage by judicial fiat. 122 P.3d at 181 (Johnson, J., dissenting). The dissent concluded as follows:
122 P.3d at 184.
[¶ 40] Other courts have reached the same result as the majority of the Washington Supreme Court did in L.B. See, e.g., In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005); Elisa B. v. Superior Court, 37 Cal.4th 108, 33 Cal.Rptr.3d 46, 117 P.3d 660 (2005); C.E.W. v. D.E.W., 845 A.2d 1146 (Me.2004); Riepe v. Riepe, 208 Ariz. 90, 91 P.3d 312 (Ariz.Ct.App.2004); In re E.L.M.C., 100 P.3d 546 (Colo.Ct.App.2004); Rubano v. DiCenzo, 759 A.2d 959 (R.I.2000); LaChapelle v. Mitten, 607 N.W.2d 151 (Minn.Ct. App.2000); E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886 (1999); Laspina-Williams v. Laspina-Williams, 46 Conn.Sup. 165, 742 A.2d 840 (1999); Jones v. Fowler, 969 S.W.2d 429 (Tex.1998).
[¶ 41] Still others have reached the same result by application of in loco parentis or the concept of psychological parentage. See In re Parentage of A.B., 837 N.E.2d 965 (Ind.2005); T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001) (recognizing the status of in loco parentis); V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539 (2000) (recognizing the status of "psychological parent"); In re T.L., 1996 WL 393521 (Mo.Cir. May 7, 1996) (adopting the doctrine of "equitable parent"); In re Custody of H.S.H.-K., 193 Wis.2d 649, 533 N.W.2d 419 (1995) (permitting a person in a "parent-like" relationship with the child to petition for visitation); Carter v. Brodrick, 644 P.2d 850 (Alaska 1982) (permitting a non-parent with status of a psychological parent or in loco parentis to petition for custody).
[¶ 42] The courts in both categories have held that legislative definitions of parentage based on a biological relationship or adoption do not preclude recognition of de facto parentage, and they emphasize the harm which can be done to a child by abruptly terminating a relationship with someone who has cared for him as a parent would. See In re E.L.M.C., supra.
[¶ 43] We acknowledge the risk of that harm in this case. Although Appellant's behavior has not always been ideal, and he may in desperation have made claims that could not be true, he has been devoted to KEP, who regards him as his father. The amicus brief provides us with scholarly authority indicating that preservation of attachments by children to those who have cared for them is critical to their healthy development. It also points out that scholarly literature indicates that these bonds develop without regard to biological ties. See, e.g., National Research Council and Institutes of Medicine, From Neurons to Neighborhoods: The Science of Early Childhood Development, at 233-34 (Jack P. Shonkoff and Deborah A. Phillips eds., 2000). The proposition makes sense, and we have little doubt that it is true.
[¶ 44] On the other hand, the Delaware Supreme Court declined to recognize de facto parentage, holding that creating a new form of parent-child relationship required action by the legislature. Smith v. Gordon, 968 A.2d 1 (Del.2009), superseded by statute 13 Del. C. § 8-201 (2010). The parties in that case were also two women who had been involved in a long-term committed romantic relationship. They decided to adopt a child from Kazackstan. Because the laws of that country did not permit two women to adopt the same child, Smith became the adoptive parent, although Gordon participated in the adoption process and cared for the child. Gordon planned to adopt, but she was led to believe that she would have to care for the child for a year before she could do so under Delaware law. The parties separated, evidently also acrimoniously, before Gordon initiated adoption proceedings. Id. at 3. The trial court found that Gordon had standing to seek de facto parentage and that she was entitled to legal and physical custody of the child. Id. at 4.
[¶ 46] In response to Smith v. Gordon, the Delaware General Assembly soon took up the challenge and enacted a definition of de facto parentage very similar to that adopted by the Washington Supreme Court in In re Parentage of L.B., supra. The Delaware Supreme Court gave full effect to the General Assembly's decision in Smith v. Guest, 16 A.3d 920 (Del.2011).
[¶ 47] We find the reasoning of the Delaware Supreme Court in Smith v. Gordon more persuasive than that of the Washington Supreme Court in In re Parentage of L.B. The version of the Uniform Parentage Act adopted by the Wyoming Legislature indicates that the "`parent-child relationship' means the legal relationship between a child and a parent of the child. The term includes the mother-child relationship and the father-child relationship." Wyo. Stat. Ann. § 14-2-402(a)(xiii). Section 14-2-501 defines those relationships as follows:
Wyo. Stat. Ann. § 14-2-501 (LexisNexis 2013).
[¶ 48] These criteria are comprehensive, and as we discussed above, could in fact have resulted in Appellant being adjudicated as KEP's father even though he was not the biological father if he had met all of the statutory requirements to be a presumed parent, and if a petition to disprove parentage was not timely filed. We also note that the Wyoming Legislature adopted the Wyoming Parentage Act in 2003. 2003 Wyo. Sess. Laws ch. 93, § 1 et seq. This was not
[¶ 49] We presume that the legislature has acted in a thoughtful and rational manner with full knowledge of existing law when it enacts a statute. DiFelici v. City of Lander, 2013 WY 141, ¶ 31, 312 P.3d 816, 824 (Wyo.2013) (citing Redco Constr. v. Profile Prop., 2012 WY 24, ¶ 37, 271 P.3d 408, 418 (Wyo.2012)). We must conclude that the legislature defined the mother-child and father-child relationships as it did advisedly.
[¶ 50] We are mindful that the Washington Supreme Court relied upon a statute somewhat similar to one enacted by our legislature, which preserves Wyoming courts' power to apply the common law:
Wyo. Stat. Ann. § 8-1-101 (LexisNexis 2013).
[¶ 51] Our statutes are, of course, not identical to those of Washington, but when we review the involvement of our legislature in the parent-child relationship, we do not find a gap of sufficient size to permit us to adopt the de facto parent doctrine. The legislature has acted extensively to define the parent-child relationship and the relationships of children with those who are not their legal parents by setting the requirements for adoption (Wyo. Stat. Ann. §§ 1-22-101 et seq.); establishing support requirements for legal parents (§ 20-2-304); defining the rights of grandparents and caregivers (§§ 20-7-101, -102); providing for guardians of minor children (§§ 3-2-101 et seq.); providing measures for the protection of children from abuse and neglect and for children in need of supervision (§ 14-3-401 et seq. and § 14-6-401 et seq.); and setting both the procedure and grounds for termination of parental rights (§§ 14-2-308 et seq.) We have in the past declined to use common law powers to modify relationships on which the legislature has acted. In re Roberts' Estate, 58 Wyo. 438, 467-68, 133 P.2d 492, 503 (1943) (declining to recognize common law marriage in light of the statutory provisions governing marriage in this state); In re Estate of Scherer, 2014 WY 129, ¶ 21, 336 P.3d 129, 135 (Wyo.2014) (declining to recognize equitable adoption in light of provision of the Wyoming Probate Code).
[¶ 52] There are also practical problems more suited to the legislative process than the time-consuming case-by-case method the courts would be required to employ to define the rights and duties of the parties:
[¶ 53] An Illinois intermediate appellate court summed up its reasons for declining to recognize de facto parentage aptly:
In re Scarlett Z.-D., 363 Ill.Dec. 729, 975 N.E.2d at 772. We also decline to recognize de facto parentage, instead deferring to the Wyoming Legislature to recognize and define that relationship if it wishes to do so.
[¶ 54] The elements of parentage by estoppel are also set forth § 2.03 of ALI Principles:
ALI Principles, supra, § 2.03 (emphasis in original). Although the presentation of this claim to the trial court suffers from the same problems as the de facto parentage claim, we will consider it.
[¶ 55] We recognize that parentage by estoppel may be a somewhat more manageable doctrine than de facto parentage because there is probably no realistic possibility that more than one person could reasonably believe himself to be the parent of a child and live in the same home for two years. However, we will decline to adopt the doctrine for the same reasons we declined to recognize de facto parentage.
[¶ 56] In addition, we note that the legislature adopted something similar to parentage by estoppel when it enacted the Wyoming Parentage Act, which creates criteria for presumptive parentage. We believe that in doing so it preempted the field. Moreover, this would not be an appropriate case for adoption of the doctrine, because the trial court found, in the face of conflicting testimony, that Appellant could not have believed himself to be KEP's parent because the court believed Mother's testimony that she was five months pregnant and "showing" when she met him, and that the child was delivered about four months later. That finding was not clearly erroneous in light of the conflicting evidence presented.
[¶ 57] The district court did not err in concluding that Appellant was not KEP's presumptive parent, and even if he had been, the presumption was conclusively rebutted by a paternity test that was stipulated into evidence. We decline to adopt de facto parentage or parentage by estoppel, instead leaving that important policy decision to the Wyoming Legislature for the reasons stated above.
[¶ 58] Affirmed.
Wyo. Stat. Ann. § 14-2-807. This statute might have barred Appellant's claim, but it was not raised by Mother.
Wyo. Stat. Ann. § 14-2-702 (LexisNexis 2013). The pleadings containing the required allegations are not sworn, and testimony leading to the order of July 2, 2012 is not in the record. However, as will be discussed more fully below, we presume that the district court had adequate evidence before it to order as it did in the absence of a record to the contrary. Golden v. Guion, 2013 WY 45, ¶¶ 4-5, 299 P.3d 95, 96-97 (Wyo.2013).
Wash. Rev.Code 4.04.010.
