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Defendant's Attorney:

Description: Boise, Idaho family law lawyers represented Petitioner and Respondent seeking child custody.

Linsay and Kylee Gatsby married in June 2015. They later decided Kylee would attempt
to conceive a child through artificial insemination, using semen donated by a mutual friend. They
elected to attempt this procedure on their own, without using the services of a physician.
Additionally, without consulting an attorney, Linsay, Kylee, and the semen donor signed a n
artificial insemination agreement Linsay found online, listing the friend as “donor” and both
Linsay and Kylee as the “recipient.” The agreement included acknowledgements that the recipient
intended to become pregnant and to have rights to the child, and that the donor would not have
parental rights or obligations to the child. Linsay performed the insemination procedure on Kylee
in their home. After several attempts, Kylee became pregnant. On October 29, 2016, Kylee gave
birth to the child.1 It is undisputed that Kylee is the child’s biological mother. Linsay was present
at the birth. The birth certificate worksheet, which Kylee signed, designates Kylee as “mother,”
and the word “father” on the form is crossed out and “mother” written by hand in its place to also
identify Linsay as the child’s mother. The Idaho Department of Health and Welfare issued a
Certificate of Live Birth identifying both Kylee and Linsay as the child’s mothers. The child
resided with Linsay and Kylee, who held themselves out as the child’s parents. Both Kylee and
Linsay shared in caregiving, but Kylee was the child’s primary caregiver.

The following summer the couple had an argument. Both Linsay and Kylee had been
drinking, and Kylee became drunk. Kylee shoved Linsay off a bed. Then Linsay punched Kylee,
breaking her nose. The child was in the bedroom during the fight, and Linsay’s two children from
a prior relationship were also in the home. Kylee was arrested and subsequently pleaded guilty to
domestic battery, a misdemeanor. Kylee had also committed an act of domestic violence years
earlier. On July 5, 2017, a No Contact Order (“NCO”) was issued, which prohibited Kylee from
seeing the child except at daycare. On August 29, 2017, Linsay filed for divorce. Kylee filed an
Answer and Counterclaim, asserting that Linsay had “no legal claim or standing to any custody or
visitation” to the minor child.

Due to the NCO, Linsay had sole custody of the child from Kylee’s arrest on July 3, 2017,
until December 27, 2017, when the magistrate court issued a Temporary Order giving Kylee and
Linsay equal custody. In the meantime, Kylee had successfully participated in a Domestic
Violence Offender Intervention/Treatment class. After sharing custody for nearly one year, on
November 15, 2018, the magistrate court granted sole custody of the child to Kylee. The magistrate
court found that Linsay was not the child’s legal parent, Linsay had established no third-party
rights, and, in the alternative, it was not in the child’s best interest for the court to award Linsay
custody or visitation rights as a third party based on the evidence in the record.
Regarding Kylee’s rights to custody, the magistrate court found “Kylee is the natural,
biological parent of [the child]. Therefore, Kylee has a fundamental constitutional and statutory
right to the custody, care, and control of [the child].” Regarding Linsay’s rights to custody, the
magistrate stated:

A rebuttable presumption exists that Linsay is [the child’s] parent due to the parties
being married when [the child] was born. Alber v. Alber, 93 Idaho 755, 760-61, 472
P.2d 321, 326- 27 (1970). The presumption may be overcome by clear and
convincing evidence. Id. The parties agree that Linsay is not [the child’s] biological
parent. The parties agree that [the child’s] biological parents are Kylee and [the
semen donor]. The marriage presumption of parentage of a child born during the
marriage has been overcome by clear and convincing evidence that Linsay is not
[the child’s] parent.

Linsay is not a legal parent through other legal avenues due to her failure to utilize
legal proceedings to declare her a parent. Linsay did not sign or properly file a
voluntary acknowledgment of paternity affidavit pursuant to Idaho Code § 7-1106.
Had Linsay done so, she would have been declared a legal parent. Linsay did not
adopt [the child] pursuant to Idaho Code § 16-1501 et seq. Had Linsay done so, she
would have been a legal parent. Linsay did not comply with the Artificial
Insemination Act and cannot receive the benefit. Linsay did not sign or file a
consent form pursuant to Idaho Code § 39-5403. Had Linsay done so, she would
have been a legal parent. Linsay does not get the benefit of the law that she did not
invoke and follow.

In this case, Kylee is the natural, biological parent of [the child]. Therefore, Kylee
has a fundamental constitutional and statutory right to the custody, care, and control
of [the child].

Further, the magistrate court found Linsay had no grounds as a third party to seek custody
or visitation rights. In the alternative, the magistrate found that it was not in the child’s best interest
to award custody or visitation rights to Linsay as a third party. Among the magistrate’s factual
findings were the following: that the child had bonded with both Linsay and Kylee; that both
sought sole custody in vengeance against the other; that neither was able to control the conflict
with the other for the child’s sake; that Linsay prioritized her own needs over those of the child;
and that “both parties have character flaws that negatively affect them for parenthood.” The
magistrate court found that Linsay had been dishonest and perjured herself during her trial
testimony, and concluded that Kylee’s interpersonal relationships were more stable than Linsay’s.
Linsay filed a Notice of Appeal, and the district court affirmed the magistrate court’s
decisions. Linsay now appeals to this Court.

Outcome: For the forgoing reasons, we affirm the decision of the district court. We further hold that
the AIA—the controlling statute in this case—is constitutional because it can be read in a gender-
neutral manner that applies equally to same-sex couples. The AIA provides the same legal
protections and places the same legal duties on Linsay as it would on a similarly situated male
spouse. Thus, we affirm the district court’s ruling upholding the magistrate court’s decision that
Linsay does not have parental rights to the child because she did not comply with the AIA.
Additionally, we affirm the district court’s determination that the magistrate court did not err in
concluding that awarding sole custody to Kylee was in the child’s best interest.
Attorney fees will not be awarded, but Kylee is entitled to costs as a matter of course
pursuant to Idaho Appellate Rule 40(a).

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