Friday, August 10, 2012

Again a California Appeals Court recognizes that a child has two mothers

A California Appeals Court has once again recognized the parentage of a woman who raised a child with her partner for many years.  This continues a significant line of cases using the “holding out” provision in California parentage law.  This provision is not unique to California.  It actually comes from the original Uniform Parentage Act which created a presumption of paternity for a man who lived with a child and held the child out as his own.  Another provision of the UPA says that insofar as it is “practicable” the provisions concerning paternity should be applied to determinations of maternity.  In 2005, in the Elisa B. case, the California Supreme Court interpreted those two statutes together to find a presumption of parentage for a woman who planned for children together with her partner, received the children into her home, and held them out as her own.

This newest case, L.M. v. M.G., from the Fourth Appellate District, has a couple of distinctive factual circumstances.  M.G. adopted the child in a single parent adoption in 2001.  The child had come to live with M.G. and L.M. immediately upon his birth in November 2000.  L.M. testified that at the time she thought the only way she could adopt the child would be to register as domestic partners and then do a step-parent adoption.  It appears, totally reasonably, that the couple did not want to jeopardize their relationship with the child by trying to do an adoption together.  The court opinion points out that until November 1999, the California Department of Social Services routinely opposed joint adoption by an unmarried couple and that the California Supreme Court did not approve second parent adoption until 2003.

So, L.M. and M.G. raised the child in the same home until 2003.  After they separated, the child lived primarily with M.G. but spent several nights a month with L.M. and vacationed with her.  The child called L.M. “mom” or “mommy” and friends, coworkers, and parents at the child’s school knew that he was L.M.’s son.
And here is the next distinctive feature of this case: this arrangement went on for seven years with no court involvement.  It is very reasonable that a woman in L.M.’s position would not go to court for a determination of parentage and a visitation order when there is a visitation schedule in place and the child continues to have a relationship with both parents.  This court action began when M.G. told L.M. and she would be moving to Europe for 18 months with her new partner.  L.M. believed that was not in the child’s best interests, and she filed a parentage action requesting custody and visitation.
M.G. opposed the parentage petition.  The trial judge found that L.M. was a parent, but did allow M.G. to take the child to Europe for the 2010-2011 school year, subject to L.M.’s visitation rights.  The judge scheduled a follow-up hearing to determine whether the time would be extended the full 18 months.  M.G. appeals, although one wonders why, given that she was permitted to take her son to Europe.
M.G. agreed that L.M. met the criteria for presumptive parentage based on “holding out,” but she argued that the presumption was necessarily rebutted when the child had been adopted by a single parent.  She argued that the single parent adoption amounted to a determination that there was a “one slot parent family.”  Therefore, she argued, there was no “second slot” for another parent to occupy.  The appeals court rejected this argument.  The issue of whether the child could have only one parent never arose in the adoption proceedings; what happened in those proceedings was a determination that the child’s legal ties with his birth parents should be severed and that the adoption by M.G. was in his best interests.
M.G. argued that her parentage conflicted with L.M.’s parentage and that the court should have conducted a weighing process and determined that M.G.’s parentage trumped that of L.M.  But the appeals court said there was no conflict, since L.M. was not arguing that M.G. was not the child’s mother.  M.G. also argued unsuccessfully that the presumption should be rebutted because it amounted to a stepparent adoption without her consent.  But the court noted that a parentage action and an adoption were two different ways of establishing parental status and therefore that was no basis for rebutting the presumption.

This opinion is one more than demonstrates a strong preference for making sure a child has two parents rather than one.  Every time I read such an opinion I am troubled by the tone of disfavor that attaches to single parenthood.  There is no doubt that in this case this child had two parents.  But I am far more supportive of single parents, gay or straight, than even gay-friendly courts  and policy makers.

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