California has developed a considerable body of law on when a person is a presumed parent because s/he received the child into her/his home and held the child out as her/his own. Last week came the latest addition to that body of law. California's Third Appellate District reversed a trial court that had denied presumed parent status to a woman because she and the child's biological mother did not plan for the child together or register as domestic partners or do other things indicating their commitment to each other. In E.C. v. J.V., the court reiterated the statutory test and held that it is the person's commitment to the child, not the other parent, that must be examined.
This case joins a growing list of those in which the child was conceived through sexual intercourse with a man, Brian P. J.V. was pregnant when she became good friends with E.C. E.C. was extensively involved in J.V.'s prenatal care and cut the umbilical cord of the child, L.V. J.V. and the child moved in with E.C. when the child was three months old. They began a sexual relationship after they were living together, something they did not tell their families until a year later. Their relatonship ended when L.V. was almost five years old, but for most of the next year there was visitation between E.C. and the child. After J.V. stopped all contact in February 2009, E.C. filed an action to establish parentage.
At the trial, E.C. presented witnesses that corroborated her assertions that she was a parent. J.V. presented witnesses to support her contention that E.C. was a godmother and nothing more. The trial judge ruled against E.C. because of the absence of a number of factors: no registered partnership, no commitment ceremony, no conscious decision to have the child together, no living together when the child was born or throughout their relationship, no telling their families about their relationship, no surname of E.C., no listing of E.C. on the birth certificate, no claiming L.V. on E.C.'s taxes. The court said that "[J.V.] never intended [E.C.] to be another parent. She was [L.V.]'s Godmother and she was [J.V.]'s long-term girlfriend."
On appeal, the court held that the trial judge had applied the wrong legal standard to the facts. Whether E.C. held the child out as her own needed to be assessed in light of her commitment to the child and the child's welfare, not her relationship with J.V. Whether the two women had a sexual relationship when the child was born -- or at all -- was irrelevant; whether they lived together when the child was born -- or ever -- was irrelevant; whether they told their parents of their sexual relationship was irrelevant. Furthermore, the fact that the two women did not plan for the child together did not demonstrate E.C's lack of commitment to the child, just as a heterosexual couple's failure to plan for a child does not do so. It's the conduct after conception and birth that matters, ruled the court. (In one case cited by the court, a child's older half-sister was ruled his presumed parent based on her conduct.)
There was much evidence of E.C.'s parental relationship with the child. As for J.V.'s testimony that she never intended E.C. to be the child's other mother, the court said: "[J.V.]'s intent is only relevant if she manifested that intent through her conduct and precluded appellant from holding out the minor as her natural child....[W]hile respondent may not have intended for appellant to obtain any legal rights to the minor, the record is replete with evidence that she allowed, even encouraged, appellant to coparent the minor from the beginning."
Because the trial judge applied the wrong legal standard, the appeals court remanded for consideration of the evidence in light of the correct standard. If the trial court finds that E.C. held the child out as her natural child, then she is a presumed parent, and the trial court must consider if this is an appropriate case for rebutting that presumption.
The child's biological father saw her a few times when she was an infant but never sought paternity or provided financial support. The appeals court called it "well-established policy in California" that whenever possible a child should have two parents for support and nurturance.
I'm struck by a number of things in this case. I can't give my complete support to a policy whose goal is find two parents for a child. To me, it comes from the same point of view that in other contexts vilifies single parents. It also suggests that two is some magic number, even when there are more than two. Some children have one parent and some have more than two, and the more courts talk about the importance of two the more fearful I get that courts will make incorrect rulings to produce exactly two parents.
After reviewing the summary of all the testimony presented at trial, it looks to me like J.V. hoped she was creating a lasting family with E.C. and the child, and then the couple's sexual relationship did not work out. At that point it's understandable that J.V. regreted some of her decisions. But heterosexual women regret their marriages and relationships all the time; they are still bound by the consequences of the choices they made during a period of great optimism. J.V. shouldn't be allowed to rewrite her daughter's life.
Finally, the law on what can rebut the parentage presumption for a same-sex partner is yet to develop in California. It's touched upon in a case I wrote about last year, In re M.C., where the court ruled that the child could not have three parents. I understand that in E.C. v. J.V. there is a dispute about the facts for the trial court to resolve, but I don't see what could legitimately rebut the presumption if J.V. meets the presumed parent test.