Tuesday, August 9, 2011

New California statute protects nonbiological parents

Last Friday, California Governor Jerry Brown signed the Protection of Parent-Child Relationships Act. This groundbreaking statute will solve a problem I wrote about last year in this post. Because federal law allows the mother and biological father of a child to sign a Voluntary Acknowledgement of Paternity (VAP) that makes the man a legal parent, the following scenario is possible: Lesbian couple raises child as two moms; under California case law, nonbio mom is presumptive parent because she received the child into her home and held the child out as her own; lesbian couple splits up; bio mom and known semen donor sign VAP, which makes man the legal father and rebuts the nonbio mom's presumption of parentage. That is what Maggie Quayle tried to do to Kim Smith. And she had on her side a 2009 California appeals court ruling that a VAP signed by a biological father trumped the presumptive parentage of a nonbiological father. Kim Smith testified in favor of this law reform effort.

Under the new statute, a voluntary declaration of paternity (California's VAP equivalent) is not valid if the man was a sperm donor, unless there was a written agreement before the child's conception that the man would be a parent. If the child was conceived through sexual intercourse, the biological father can sign a voluntary declaration of paternity, but a presumed parent (which would include a nonbio mom who received the child into her home and held the child out as her own) can challenge that declaration within two years. If she does so, the court must decide parentage based on the best interests of the child, including taking into account the "nature, duration, and quality" of each claimant's relationship with the child.

Equality California hailed enactment of this statute. Kudos to the technical expertise of attorneys Deb Wald and Diane Goodman for helping to make this happen.

1 comment:

Divorce Attorney Swati S. Desai said...

Being a parent is not about the biological connection, but about the emotional bond that develops between a parent and child. An individual who holds himself or herself out as the parent has essentially assumed the parental role in a child's eyes. We live in an ever changing world and the definition of "family" also needs to evolve to fit the modern world.