Tuesday, November 9, 2010

This child has two fathers....sort of...and this is not a story about gay dads

A California appeals court has provided us with yet another story of complex family life to which law must respond. The case is Citizens Business Bank v. Carrano. Doesn't sound like a family law case, does it? Turns out it's a case about inheritance, specifically about the terms of a trust. The law of wills, trusts, and estates is often really family law....it's just that someone is dead.

In this case the dead people are a married couple who left their estate to the "issue" of their son Christopher. Jonathan Carrano was the biological child of Christopher, and the dispute in the case was whether he was Christopher's "issue." Christopher was not married to Jonathan's mother. And here's where it gets interesting. Jonathan, who is now 25 years old, was born to his mother, Kathy, while she was married to another man (unnamed in the opinion), and the two of them raised Jonathan as their child. Under California law, Kathy's husband is the child's father.

The trust that Christopher's parents set up excludes as "issue" a child adopted by Christopher or a child "adopted out of the...bloodline." Had Kathy's husband adopted Jonathan, then Jonathan would not count as "issue" under the trust. But Kathy's husband had no need to adopt Jonathan; he was Jonathan's father by virtue of marriage to Jonathan's mother.

The trial court ruled that the trust was not specific about how to handle a child born into a family that did not include Christopher and that therefore the term could be interpreted to effectuate the intent of the trustors. The trial court decided that since Jonathan was the legal child of another man he did not count as Christopher's issue.

The appeals court reversed. There was various evidence about who knew when that Jonathan was Christopher's biological child. (Christopher knew for a long time, maybe since the beginning; Kathy told Jonathan and Christopher's father about six months before Christopher's father died, but he was very ill at the time.) In the end that did not matter to the appeals court. All that mattered was that the term "issue" was defined to include lineal descendants not adopted into or out of the bloodline. Jonathan was such a person.

So let's review. Jonathan has a legal and functional father (unnamed) who raised him, but he inherited money as the child of another man. In my book that gives him two fathers. In the most formalistic sense, it may satisfy to articulate that two different bodies of law are involved here, with family law conclusively presuming that Jonathan is the son (and lineal descendant) of Kathy's husband, and trusts and estates law defining lineal descendant by blood and including Jonathan because Christopher's parents did not explicitly reject a child in Jonathan's circumstance. But that formalist approach is deeply unsatisfying. Rather, this case demonstrates the highly contingent and constructed legal definition of parent and child. The court knows how to do that when it wants to. So next time a court says a child cannot have two fathers, or two mothers, or more than two parents, it is good to keep in mind that it is law that creates or refuses to create legal parentage.

There's a legally irrelevant fact in this case. The court notes it, and I will too. Jonathan was the product of rape. Kathy was Christopher's physical therapist and one night he drugged her and had sex with her without her knowledge. I doubt the fact would have been legally irrelevant had Christopher sought a legal declaration of parentage while Jonathan was a child. In fact, I think it's safe to say a California court would have rejected any such effort. Would Jonathan still have been Christopher's "issue" in that instance? If so, it seems all the more to be a legal construct to allow him to prevail here. If not, then the court would have had to interpret "adopted out" in the trust document to include something analogous, such as determining parentage through a legal proceeding. Yet to do that would be to admit an ambiguity that the appeals court simply refuses to see here.

As I often tell my family law students, I couldn't make up these facts....

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