LORENZO VS. GENDEBIEN (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court reviewed the NRCP 12(b)(5) dismissal de novo, applying the "rigorous standard of review" from Buzz Stew, LLC v. City of North Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008), presuming the truth of the plaintiff's factual allegations and drawing all inferences in the plaintiff's favor. A complaint "should be dismissed only if it appears beyond a doubt that it could prove no set of facts, which, if true, would entitle it to relief." Id. at 228, 181 P.3d at 672. A plaintiff need not correctly identify the legal theory relied upon. Droge v. AAAA Two Star Towing, Inc., 136 Nev. 291, 308, 468 P.3d 862, 878 (Ct. App. 2020); see Zohar v. Zbiegien, 130 Nev. 733, 736, 334 P.3d 402, 404 (2014). Dismissal for lack of standing is reviewed under the same de novo standard as failure to state a claim. Citizens for Cold Springs v. City of Reno, 125 Nev. 625, 629, 218 P.3d 847, 850 (2009); Shoen v. SAC Holding Corp., 122 Nev. 621, 634, 137 P.3d 1171, 1180 (2006). Statutory interpretation is reviewed de novo. Irving v. Irving, 122 Nev. 494, 496, 134 P.3d 718, 720 (2006). **Standing under the NPA.** Under NRS 126.231, "[a]ny interested party" may bring an action to determine the existence of a mother and child relationship, and the father-and-child provisions apply "[i]nsofar as practicable." An interested party is "someone with a direct personal stake, either financial or social, in establishing or disestablishing the [parental] relationship." In re Est. of Murray, 131 Nev. 64, 71, 344 P.3d 419, 424 (2015). A parentage determination "rests upon a wide array of considerations rather than genetics alone." St. Mary v. Damon, 129 Nev. 647, 653, 309 P.3d 1027, 1032 (2013). The court held Lorenzo's allegations established a direct personal stake as A.G.'s putative mother, conferring standing under NRS 126.231, distinguishing Rosie M., 138 Nev. 539, 542-43, 512 P.3d 758, 762-63 (2022), because no one other than Gendebien claimed a genetic link. **Gender-neutral application of the presumptions.** The court held that the disjunctive presumptions in NRS 126.051(1)(b) (cohabitation for at least six months before conception and continuing through the period of conception) and NRS 126.051(1)(d) (receiving the child into the home and openly holding out the child as one's natural child) apply "[i]nsofar as practicable" to maternity actions under NRS 126.231. Relying on St. Mary and its favorable treatment of California authority - Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005), and In re Karen C., 124 Cal. Rptr. 2d 677 (Ct. App. 2002) - the court found the presumptions "practicable" because they rest on social and familial conduct rather than genetics. The court noted the substantive identity of Cal. Fam. Code § 7611(d) with NRS 126.051(1)(d) and of Cal. Fam. Code § 7650 with NRS 126.231, all traceable to the 1973 UPA. The court acknowledged the fundamental parental rights recognized in Troxel v. Granville, 530 U.S. 57, 66-67 (2000), and stated that any expansion of who is a parent should be "appropriately narrow." Because Lorenzo's allegations satisfied the (1)(b) and (1)(d) presumptions, her action must withstand dismissal. **Burden of proof at the evidentiary hearing.** The court held that the putative parent must establish presumptive-parentage status by a preponderance of the evidence, the "default evidentiary standard in family law absent clear legislative intent to the contrary." Monahan v. Hogan, 138 Nev. 58, 69, 507 P.3d 588, 597 (Ct. App. 2020). The district court must make specific findings under NRS 126.051(1). Cf. Davis v. Ewalefo, 131 Nev. 445, 452, 352 P.3d 1139, 1143 (2015). **The "appropriate action" and rebuttal inquiry.** NRS 126.051(3) provides that a presumption "may be rebutted in an appropriate action only by clear and convincing evidence." Drawing on In re Est. of Jotham, 722 N.W.2d 447, 454-55 (Minn. 2006), and In re Est. of Murray, 131 Nev. at 69-71, 344 P.3d at 422-24, the court held that "an appropriate action" incorporates NRS Chapter 126's standing and limitations requirements; because Lorenzo's action was authorized under the NPA, it qualified as an "appropriate action." The court then adopted the merits-focused California approach synthesized in Elisa B., 117 P.3d at 667-70, and reflected in Nicholas H., 46 P.3d 932, 941 (Cal. 2002), In re Jesusa V., 85 P.3d 2, 11 (Cal. 2004), In re Karen C., and In re Salvador M., 4 Cal. Rptr. 3d 705, 709 (Ct. App. 2003), and augmented by out-of-state authority including Chatterjee v. King, 280 P.3d 283, 294-95 (N.M. 2012). The court announced a three-factor conjunctive test for the rebuttal inquiry: (1) family-formation, intent, and conduct; (2) voluntary assumption of parental responsibilities; and (3) existence and nature of competing parentage claims brought by putative parents with no genetic connection to the child. The court cited community-property analogues on the clear-and-convincing standard. Cf. Pryor v. Pryor, 103 Nev. 148, 150, 734 P.2d 718, 719 (1987); Lopez v. Lopez, 139 Nev. 533, 540-41, 541 P.3d 117, 124-25 (Ct. App. 2023). The district court must make specific findings under NRS 126.051(3), cf. Davis, but need not bifurcate proceedings where the same evidence bears on both existence and rebuttal, cf. Monahan, 138 Nev. at 65-69, 507 P.3d at 594-96. As to competing claims, the court noted that genetic parentage under NRS 126.051(2) is superior to putative parentage without a genetic connection, citing Rosie M. **Effect of the gestational agreement.** The court construed NRS 126.710(2) and NRS 126.720(1) according to their plain meaning, harmonizing multiple statutes where practicable. Diamond Nat. Res. Prot. & Conservation Ass'n v. Diamond Valley Ranch, LLC, 138 Nev. 436, 441, 511 P.3d 1003, 1007 (2022); Williams v. State, Dep't of Corr., 133 Nev. 594, 600, 402 P.3d 1260, 1265 (2017); Nuleaf CLV Dispensary, LLC v. State, Dep't of Health & Hum. Servs., 134 Nev. 129, 133, 414 P.3d 305, 309 (2018). The court held NRS 126.710(2) unambiguously means Lorenzo is not an intended parent because she is not named, and that NRS 126.720(1)'s "immediately upon the birth of the child" language vests the intended parents' rights at birth but does not bar post-birth parentage claims by persons not excluded by the agreement. Reading the provisions otherwise would risk absurd results, which courts avoid. City of Henderson v. Wolfgram, 137 Nev. 755, 757, 501 P.3d 422, 424 (2021). The court found this consistent with the NPA's purposes, St. Mary, 129 Nev. at 654-56, 309 P.3d at 1032-34; Willerton v. Bassham, State, Dep't of Hum. Res., 111 Nev. 10, 20, 889 P.2d 823, 829 (1995), and stressed that these principles do not compel recognition where it would not serve the child's best interest, the "polestar" of family-law decisions, Monahan, 138 Nev. at 62, 507 P.3d at 592; see NRS 125C.001(1); In re Guardianship of N.M., 131 Nev. 751, 757, 358 P.3d 216, 219-20 (2015). The court reviewed the legislative history of NRS 126.720 (originally Assembly Bill 421, 2013), finding that the "absolute nonappealable decision" testimony was directed at preventing surrogate claims, as codified in NRS 126.720(1)(e), and read the statute as a whole, In re Pub. Recs. Requests to LVMPD, 141 Nev., Adv. Op. 26, 569 P.3d 624, 629 (2025). **Equitable adoption and nonparent visitation.** The court declined to disturb the district court's ruling that Lorenzo failed to plead equitable adoption, noting she cited no relevant authority equating a promise to add a name to a birth certificate with a promise to adopt. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). Because Lorenzo did not challenge the denial of nonparent visitation under NRS 125C.050(4), that portion of the order remains in place pending remand. The court also noted the possible necessary-party implications regarding the gestational agreement. See Gladys Baker Olsen Fam. Tr. ex rel. Olsen v. Eighth Jud. Dist. Ct., 110 Nev. 548, 553-54, 874 P.2d 778, 781-82 (1994); NRS 126.101(1)-(2).

In plain language

This case is about who can be legally recognized as a parent in Nevada when a child was born through a surrogate arrangement and one of the adults raising the child has no biological connection to the child. Mary Lorenzo and Pierre Gendebien were in a relationship and lived together starting in 2016. In 2017, Gendebien signed a gestational agreement - a contract to have a child through a surrogate (a woman who carries and gives birth to a child for someone else). The child, A.G., was conceived using Gendebien's sperm and an egg from an anonymous donor. The agreement named Gendebien as the only intended parent and left the space for a mother's name blank. Before the child was born, Gendebien obtained a court order establishing himself as the sole parent, and the child's birth certificate left the mother's name blank. A.G. was born in June 2018. Lorenzo and Gendebien raised the child together in their shared home until their relationship ended in November 2021. At first they shared equal time with A.G., but Gendebien gradually reduced Lorenzo's access and eventually cut it off. Lorenzo then went to court in September 2022, asking to be recognized as A.G.'s mother and seeking joint legal and physical custody. She said she and Gendebien had held her out as A.G.'s parent, that they had lived together as a family since before the child's birth, and that Gendebien had promised to add her name to the birth certificate. Gendebien asked the court to throw out her complaint, arguing she had no right to seek parentage because she did not give birth to A.G., did not adopt A.G., was not married to Gendebien, and was not named in the gestational agreement. The district court agreed and dismissed her maternity and custody claims (though it allowed a separate request for nonparent visitation to continue, which was later denied). The Court of Appeals reversed. The court explained that when someone asks a court to dismiss a complaint at the very start of a case, the court must assume the facts the person alleges are true. The question is only whether those alleged facts, if proven, could entitle the person to relief. The court held that Nevada's parentage statutes do not limit motherhood claims only to women who have a biological link to the child. Under NRS 126.231, "any interested party may bring an action to determine the existence of a mother and child relationship," and Nevada's rules about how fatherhood can be presumed apply to motherhood cases "insofar as practicable." The court held that two of the ways a man can be presumed to be a father - living with the child's other natural parent for at least six months before conception and continuing through the period of conception, and receiving the child into his home and openly holding the child out as his own - can apply equally to a woman seeking to be recognized as a mother. Because Lorenzo alleged facts fitting these situations, her case should not have been dismissed at the outset. The court also addressed the surrogacy contract. It held that the contract locked in Gendebien's rights as the intended parent "immediately upon the birth of the child," but did not permanently block other interested people from later trying to establish that they are also a parent - unless they had agreed to be left out. The court noted that the surrogacy statutes were mainly designed to prevent a surrogate from later claiming to be the child's parent, not to forever shut out everyone else. The court sent the case back to the district court with instructions. On remand, the district court must hold an evidentiary hearing. Lorenzo must first prove, by a preponderance of the evidence (meaning more likely than not), that she qualifies as a presumptive parent. If she does, Gendebien then gets the chance to rebut - to overcome - that presumption, but only by clear and convincing evidence (a higher standard). To decide whether rebuttal is appropriate, the court announced a new three-part test looking at how the family was formed, whether the person voluntarily took on parental responsibilities, and whether anyone else is claiming to be the child's second parent. If Lorenzo's presumptive status is not rebutted, she is recognized as a parent and the court moves on to decide custody based on the child's best interest. If it is rebutted, judgment goes to Gendebien.