State presumptive father statute may be used to give former same-sex partner parental rights

Law Reporter, Nov 2004

Kristine H. v. Lisa R., ____ Cal. Rptr. 3d ____, No. B167799, 2004 WL 1465100 (Ct. App. June 30, 2004).

A California appellate court held the presumptive father provision of the state's family law act may be used in determining whether a woman is the second parent of a child born into a same-sex partnership.

Here, two women in a same-sex relationship decided they would have a child, with one partner being artificially inseminated. The parties obtained a legal judgment giving both of them parental rights and establishing joint custody. After the child was born, the nonbiological parent was listed in the "father" section of the birth certificate, and the child's surname was a combination of both parents' names. When the child was two years old, the parties separated, and the biological mother moved to vacate the consent judgment and sever the other woman's parental rights. The trial court denied the motion, holding an action to determine parentage could be brought before birth, and the judgment could not be vacated.

Reversing, the trial court voided the judgment, but found the nonbiological parent still had parental rights under the state's Uniform Parentage Act, Cal. Fam. Code §§ 7600 et seq. In holding the agreement void, the court said judgment of parentage cannot rest on a stipulation made without regard to the provisions of the family law act.

However, the court said the nonbiological parent might still have recourse in the act itself, if the act is read in a gender-neutral fashion. Citing recent case law, the court found that women who are putative parents but not necessarily biological parents can be treated in the same way that a putative fatiier is treated under the act. Although none of the cases dealt witii a same-sex relationship, they all involved a presumed mother who had raised the child as if she were the natural parent, and the courts held the act was gender-neutral in this regard. The fact that both parties here are women does not preclude a similar application of the law.

The act confers a rebuttable presumption of parental status to a putative father if he receives the child into his home and holds the child out as his natural child. In this case, there is no dispute that one party is the only natural parent of the child, but the court must determine whether the nonbiological party can receive "second parent" status. The nonbiological parent has provided sufficient evidence to establish a triable question of fact regarding whether she meets the requirements of presumptive parent status.

Nonbiolqgical Parent's Counsel

Leslie Ellen Shear, Encino, Cal.

Diane M. Goodman, Encino, Cal.

Comment: For another case with the same result, see C.E.W, v. D.E.W., 845 A.2d 1146 (Me. 2004). The nonbiological parent was represented by Patricia A. Peard, Kenneth P. Altshuler, and Mary L. Bonauto, all of Boston, Mass. For a contrary result, see K.M. v. E.G., 13 Cal. Rptr. 3d 136 (Ct. App. 2004). In that case, a woman donated ova to her partner. Although the woman was biologically related to her former partner's children, the court concluded she is not a legal parent because she did not intend to co-parent at the time of the donation. Diana E. Richmond, San Francisco, Cal., represented the prevailing party.