Child Custody: Presumed Parent Principle

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Child CustodyIn an action for dissolution of a domestic partnership, the family law court awarded joint custody of the partners’ child.  C.P., who gave birth to the child, contends that a person other than the birth parent may not be awarded custody unless the birth parent is found to be unfit.

C.P. and D.F, a same-sex couple living together in a committed relationship, decided in 2003 that they wanted to raise a child together.  Initially, they agreed to adopt.  They investigated foreign-country adoptions and began a year-long process toward adoption.  They went so far as to meet a prospective adoptive child and have the child stay with them for two days.  C.P. decided, however, not to go through with the adoption because she wanted a child of her “own” and felt that she could not love a child who was not her biological child.  D.F. was “devastated,” but ultimately agreed that C.P. would attempt to conceive by artificial insemination using an anonymous sperm donor and that they would raise the child together.  D.F. and C.P. jointly selected a fertility clinic and jointly selected the sperm donor.  They shared expenses related to the baby equally and jointly prepared their home for the baby.  D.F. accompanied C.P. to some of her prenatal medical appointments.  She was present for a sonogram.

Shortly before H. was born, C.P. and D.F. registered their domestic partnership, pursuant to Family Code sections 297 and 298.5.

In 2004, C.P. gave birth to H.  D.F. was present for the birth and drove them home after C.P. was released from the hospital.  C.P. asked to have D.F. named on the birth certificate, but the “lady in charge” at the hospital refused.  C.P. and D.F. sent out birth announcements and chose their best friends to be H.’s godparents.  C.P. and D.F. shared a home owned by D.F.  H. lived with both C.P. and D.F. from birth, and both women cared for her.  C.P. was able to take six months maternity leave because she delivered by Cesarean section.  D.F. was not able to take such a long leave, but she took a three-week maternity leave.  When C.P. returned to work, she worked the graveyard shift in order to be with H. during the majority of her waking hours.  D.F. worked days, and cared for H. when C.P. was at work.  D.F. turned down a position she was offered shortly after H. was born so that she would be more available to care for H.  She also turned down some overtime.  D.F. and C.P. shared childcare expenses and other expenses related to H. equally.

In September 2006, C.P. and D.F. decided to end their relationship.  D.F. moved out of their shared home temporarily, until C.P. moved out with H.  On October 19, 2006, C.P. filed a petition for dissolution of the domestic partnership.

Beginning August 14, 2008, a hearing was held on division of property, spousal support and custody and support of H.  On July 12, 2010, the court issued its proposed statement of decision.  After proceedings on C.P.’s objections to the statement of decision, judgment was entered on November 15, 2010.  The judgment found D.F. to be H.’s presumed parent.  It awarded joint legal custody and physical custody of H. and ordered D.F. to pay $261 a month in child support to C.P.

C.P. contends that because she is H’s biological parent and D.F. is not, the order for joint legal custody violates her due process right to raise her child.  She contends that “California law recognizes only one mother.”  The essence of her position is simply that her biological maternity trumps all other considerations.  The law holds otherwise.

In Elisa B. v. Superior Court (2005) 37 Cal.4th 108 (Elisa B.), the California Supreme Court addressed the “parental rights and obligations, if any, of a woman with regard to a child born to her partner in a lesbian relationship.”  (Id. at p. 113.)  Section 7611 provides in part that a man is presumed to be the natural father of a child if he “receives the child into his home and openly holds out the child as his natural child.”  (§ 7611, subd. (d).)  Section 7650 provides that provisions applicable to determining a father and child relationship shall be used to determine a mother and child relationship “[i]nsofar as practicable.”  (§ 7650, subd. (a).)  In Elisa B., the court held that the presumed father principle applies to a woman in a same-sex relationship.  (Elisa B., at pp. 119-120.)  Further, the court held, as it had in previous cases, that the lack of a biological relationship does not preclude the putative presumed parent from proving that he or she held the child out as his or her natural child.  (Id. at p. 126 [“‘natural’ as used in the [Uniform Parentage Act] does not always mean ‘biological’”]; accord, In re Nicholas H. (2002) 28 Cal.4th 56, 62-70; In re Jesusa V. (2004) 32 Cal.4th 588, 604.)  Rather, a presumed parent is “someone who has entered into a familial relationship with the child [and has] demonstrated an abiding commitment to the child and the child’s well-being, regardless of his or her relationship with the child’s other parent” (E.C. v. J.V. (2012) 202 Cal.App.4th 1076, 1085), and regardless of his or her biological relationship to the child.  And, where the child would otherwise have only one parent, allowing a person who is not the biological parent to obtain presumed parent status furthers California’s policy that “‘whenever possible, a child should have the benefit of two parents to support and nurture him or her.’  [Citations.]”  (Elisa B., at p. 123.)

Here, it was undisputed that C.P. and D.F. lived together in August 2004, when H. was born, and continued to do so until September 2006.  Accordingly, there is no dispute that D.F. took H. into her home.

There is little evidence which was specifically directed toward establishing that D.F. held H. out as her daughter.  Nevertheless, the evidence overwhelmingly establishes that D.F.’s relationship with H. was that of mother and child.

First, D.F. testified that she considered herself H.’s mother:  “We’re each her parent.  So, as a result we’re her mothers.  She came into this world together [sic] because of a decision we made together.  Together we are her parents, being female we are both mothers.  I’m her mother, [C.P. is] her mother, nobody else is the—her mother.”  She also testified that it did not matter to her that H. did not share her genes.

Second, D.F.’s testimony established that she was as involved in and as concerned about H.’s life and well-being as any parent would be, both before and after her separation from C.P.  While they still lived together, D.F. cared for H. when C.P. was at work.  She took H. to doctor appointments, sometimes with C.P. and sometimes without her.  After the separation, she had regular visitation with H., including weekly visits lasting more than a day.  At times, her work schedule made it difficult, but she arranged her life to the best of her ability in order to have time with H.  She actively sought joint legal and physical custody and the ability to make joint decisions concerning H.’s education and daycare.  She also expressed concerns about minimizing or mitigating the disruptions in H.’s life resulting from the dissolution.

This evidence unquestionably supports the conclusion that D.F.’s relationship with H. was parental and that she “demonstrated an abiding commitment to the child and the child’s well-being.”  (E.C. v. J.V., supra, 202 Cal.App.4th at p. 1085.)  Moreover, there was no evidence that supports the conclusion that D.F. was not a mother to H.  Accordingly, substantial evidence supports the family law court’s finding that D.F. is H.’s presumed parent.

Please click here to read the original C.P. opinion.

Please be sure to visit, the website for the law firm of Harding & Associates, for more information on Child Custody Law.

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