Monday, December 12, 2011

California appeals court upholds parentage determination for Colonel in US Air Force Reserves

On Friday, in S.Y. v. S.B., the California Third Appellate District upheld a trial court order that found S.Y. to be a parent of two children adopted by her partner, S.B.  This case is signifcant because S.B. argued that her partner had not "received the children into her home" as required by statute because she maintained a separate residence for almost the entire 13+ years of their relationship.  But the reason S.Y. maintained a separate home was because of the potential threat of Don't Ask Don't Tell to her 30 year career in the Air Force.  I wrote about this case, and the impact of the end of DADT on same-sex couples with children, in September.  The children were 10 and 5 when S.Y. filed a parentage action.  It was two months after she and S.B. split up and a month after S.B. denied her access to the children.

S.Y. had a stellar legal team: Eileen Gillis in Sacramento, who won at trial by building a detailed picture of the ways in which S.Y. was the children's mother and did live with them in their family home which was S.B.'s home, and the incomparable Deb Wald who preserved the win on appeal.

Since the victory in the California Supreme Court in 2005 in the Elisa B. case, a mother's partner who receives a child into her home and holds the child out as her own is presumptively a parent of that child.  Deb Wald pointed out to me with pleasure that it was the Third Appellate District that got Elisa B. wrong, leading to the appeal that created the current law.  Therefore, it's great to see that court in particular look so carefully into the life of this family and completely understand what was going on there.

As often happens, the appeals court had a case involving heterosexuals to build upon in this case.  A court in 2003 had found that a man met the "received" test even though the child never lived with him, because the child visited his home regularly and he provided for her financially.  In S.Y.'s case, she stayed overnight at S.B.'s home (which the court called the family home) three to four nights a week and stopped by on the other nights.  The court described in detail all the parental tasks that S.Y. did and all the financial support she provided.  The opinion quotes the trial court's finding that this was not a situation of a person dating the mother who incidentally cared for the mother's children because of that.  Rather, the relationship between the women lasted longer than it would have because of S.Y.'s commitment to the children.

The moms split up when the first child was about 3 1/2.  The split up last 2 1/2 years, but S.Y. continued parenting all that time (except when S.B. would not allow it), going to S.B.'s home most evenings and every weekend and going on vacations and other family outings together. They were still split up when S.B. decided to adopt another child, and S.Y. did not participate in that decision. But during the adoption process, S.B. asked her to come to Minnesota, where the second child was born, to help take care of the first child while the adoption proceedings there dragged on.  And when everyone returned to California, S.Y. continued to go to the home most evenings and every weekend to be with the children, and she did act as a parent to the second child as well.   The couple reconciled in November 2005, about a year after the second child's birth, and they split up for the final time in July 2009.

Given this non-standard factual scenario, the court might have ruled against S.Y. because there was no joint decision to adopt the second child.  But the court looked at the joint parenting instead.  Similarly, and to me this is the most important part of the ruling, the appeals court said as follows:  "While S.B. may not have intended for S.Y. to obtain any legal rights to the children, the record is replete with evidence that she not only allowed, but encouraged, S.Y. to co-parent both children from the beginning."  This is followed by a long paragraph summarizing all the actions taken by S.B. to make S.Y. a parent.

We talk often of "intended" parents in a way that seems to make intent the touchstone of determining who is a parent.  Certainly our cases and scholarship (including mine) are full of references to the importance of intent. I remember Jenni Millbank, Australia's leading scholar of LGBT family law, arguing vehemently that intent can be too subjective and that it is actions that should count. When a woman consents to her partner's insemination, Jenni would say, the consent is the action that makes her a parent.  Jenni did not agree that the law should require proof on top of the consent that the partner intended to be a parent.

Well I thought of Jenni when I read this part of the opinion.  I have no idea what S.B. intended, but the evidence shows what she did.  And what she did made S.Y. a parent of the children she adopted, complete with Mother's Day cards, incorporation into S.Y.'s extended family, and joint care and financial support of the children.  That is what the children experienced.  The children could not know what was in S.B.'s mind, and it would not have mattered to them if they did.  Children learn that actions speak louder than words.  And actions certainly speak louder than unsaid words, like whatever was in S.B.'s mind.  In the end, this case is important for its ability to see a family home even when one adult had a separate residence; to see consistent parenting in the midst of some instability in the adult couple relationship; and to find facts based on behavior, not thoughts.