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California Court of Appeal Rules for Lesbian Second Parent

Posted on: August 6th, 2012 by Art Leonard No Comments

Marking a slight extension of California precedent concerning lesbian second-parent status, a panel of the 4th District Court of Appeal ruled in L.M. v. M.G., 2012 WL 3125123 (August 2, 2012), that the former same-sex partner of an adoptive parent may seek joint custody and visitation rights with the child.  Applying the Uniform Parentage Act, the court held that the paternity provisions apply, and that the original single-parent adoption decree does not detract from the claim of parental rights by the former partner.

According to the decision for the three-judge panel by Justice Joan Irion, M.G. and L.M. lived as same-sex partners from 1998 to the end of 2003.  They each brought a child into the relationship born before the two women became a couple.  M.G. wanted to have another child and unsuccessfully tried to conceive again using donor insemination, taking sperm from the same donor who was the progenitor of her first child, but it didn't work, and she ended up adopting a child.  At that time, 2001, it was not yet definitely established under California law that same-sex couples could jointly adopt, or that the same-sex partner of an adoptive parent could subsequently adopt under the "step-parent" procured.  The two women brought the adoptive child into their home and shared parental duties.  The child regarded both women as his parents.

The women's relationship ended in 2003, but L.M. continued seeing the child regularly with M.G.'s approval and encouragement.  M.G. testified that she allowed regular contact after the relationship between the women had ended because the child had lived in the same house with L.M. since his birth and "knew and loved her."  M.G. explained, "The more people that love you the better.  [L.M.] loves him..  He's been given a gift… I can't just take it away.  It would be wrong."

But in October 2009 M.G. told L.M. that she planned to relocate to  Europe with the child for 18 months the following summer because M.G.'s registered domestic partner would be temporarily reassigned there for her job.  L.M. was opposed to this, and filed a petition on May 3, 2010, seeking to establish her parental relationship to the child under the U.P.A. and to obtain joint custody and visitation orders.  Specifically, she sought a determination from the court about whether the child should be relocated to Europe. 

San Diego Superior Court Judge Susan D. Huguenor, applying the U.P.A. as it has been construed by the California Supreme Court in cases involving lesbian couples and their children, determined that L.M.'s parental rights should be recognized by the court under Section 7611 of the California Family Code, because L.M. "received the Child into her home and held him out to the world as her natural child."  The concept of "natural child" under the UPA, as adopted and construed in California (and now several other states) makes a distinction between biological parent and natural parent.

For purposes of paternity (which includes maternity because of gender-neutral construction of the statutory language), a same-sex co-parent of a birth mother was considered a "natural parent" in the landmark California Supreme Court ruling in Elisa B. v. Superior Court, 37 Cal.4th 108 (2005).  Judge Huguenor saw no reason to treat the situation differently when one of the women had adopted the child and the other had not, and the Court of Appeal panel agreed.

M.G.'s main argument, stated various different ways, was that the adoption presents a different case, because it involves a judicial determination to establish a family consisting of the adoptive parent and the child, thus creating, in effect, a legal single-parent family.  As such, she argued, her former partner, who never adopted the child, should not be entitled to seek a declaration of parental rights.  The court would not accept this argument, however, noting that in Elisa B. the California Supreme Court had cut through various formalities of statutory language to advance the policy preference that a child have two legal parents if that is consistent with the facts of the child's life.

"The record contains no evidence," wrote Justice Irion, "that the issue of whether the Child could have only one parent was raised or decided in the adoption proceedings.  Thus, although the adoption decree obtained by M.G. implicitly served as an adjudication that the Child's best interests were served by conferring parental status on M.G. and severing the Child's legal ties with his birth parents, there is no basis to characterize the adoption decree as establishing that, regardless of future developments, the child should be limited to only one parent.  It is now well established that a child raised in a same-sex relationship may have two mothers, and our Supreme Court has announced a 'public policy favoring that a child have two parents rather than one.'  Against this background, we reject M.G.'s interpretation of the adoption decree as a judgment establishing that the Child may have only one mother." (Emphasis in original).

Also, because L.M. was not seeking to change M.G.'s status as the Child's parent, there was no need to examine "conflicting presumptions" about parentage, because the court saw no conflict.  Since a child can have two mothers under California law, the parental claims of M.G. and L.M. were not "mutually exclusive."  Furthermore, the single parent adoption decree was not, in the court's opinion, a reason to rebut the parentage presumption in favor of L.M. that arose from the circumstance of her accepting the child in her home, providing parental care and holding the child out to the world as her natural child.  "The state policy in favor of providing a child with two parents has led courts to conclude that it would not be an 'appropriate action' to rebut a parentage presumption when that presumption arises in favor of a second parent of a child raised by a same-sex couple and there is no other person competing for the second parent position," Justice Irion commented, and the court rejected the idea that this case should be decided differently from cases in which one member of the couple was a birth mother.

Thus, the court of appeal affirmed Judge Huguenor's ruling grant joint legal custody to M.G. and L.M., and designating M.G.'s residence as the Child's primary residence.  As to the European relocation, the judge permitted M.G. to travel to Europe with the child for the 2010-11 school year, noting certain visitation rights for L.M. during that time, and ordered a follow-up hearing to determine whether the stay in Europe should be extended "to the full intended period of 18 months."  Thus, although L.M.'s original motivation for bringing the proceeding – to try to block the relocation – had failed, she did obtain recognition of her parental status and joint-custody, which would entitle her to maintain contact with her son and have a continuing say in his upbringing. 

L.M. is represented by Sandler, Lasry, Laube, Byer & Valdez LLP and Edward I. Silverman.  M.G. is represented by Stephen Temko, Jeffrey W. Doeringer and David Lee Moore.  Justice Aaron concurred with Justice Irion's opinion, and Justice Huffman added a brief statement concurring with the "majority opinion" as "an accurate statement of California law" and "consistent with the direction provided by Elisa B."  Justice Huffman thus "concurred in the result," without explaining a failure to just sign Justice Irion's opinion, leaving a slight puzzle for this reader.

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