Presumed Parenthood for California Domestic Partners – Did This Issue Have to Be Litigated?

Under longstanding legal principles in most American jurisdictions, and definitely in California, when a married woman has a child, her spouse is presumed to be the legal parent of the child.  When California first established legally-recognized domestic partnerships for same-sex couples, this status brought with it only a limited menu of rights and responsibilities.  However, through a few rounds of amendments, the domestic partnership status was expanded to come close to matching the legal rights and responsibilities of spouses.  The last such round of amendments, taking effect on January 1, 2005, provides that “the rights and obligations of registered domestic partners with respect toa  child of either of them shall be the same as those of spouses.”

On October 19, 2006, C.P., a party to a domestic partnership with D.F., filed a petition in San Bernardino County Superior Court seeking a dissolution of the domestic partnership.  C.P. is the biological mother of their child, H., who was born in 2004, shortly after the women registered their domestic partnership.  In the context of the dissolution proceeding, D.F. sought joint custody of H.  C.P. objected to this, asserting that as the biological mother she was entitled to sole legal custody, and that under California law a child could have only one mother.  The trial judge overruled this objection, and awarded joint legal custody and physical custody, ordering as well that D.F. make monthly child support payments to C.P.  C.P. appealed.

The 4th District Court of Appeal ruled on May 16 that C.P.’s argument was inconsistent with California law.  Indeed, since 2005, in Elisa B. v. Superior Court, 37 Cal.4th 108, the California Supreme Court has adopted the view that a child can have two mothers, and that in a scenario similar to that of the C.P.-D.F. situation, California law should be interpreted to recognize presumptive parental statute for a lesbian co-parent of a child conceived within the partnership of the two women and jointly raised by them until they decided to end their relationship.

So one wonders why C.P. was litigating this question of established law?  The answer, apparent from the face of the opinion, see 2013 Westlaw 2099156, was that C.P. was representing herself in appealing the trial judge’s order to the Court of Appeal.  Presumably a competent lawyer would have figured out that the chances of winning this case on appeal, in light of the findings and reasoning of Superior Court Judge John M. Pacheco, were nil.  Indeed, the result is so uncontroversial that the court has designated its decision as unpublished, since it is virtually superfluous. 

So, it’s time to get the word out in California, to the lay public as well as the practicing bar, that when it comes to issues of parental status and rights, registered domestic partners have the same rights as legal spouses.  If that wasn’t totally clear prior to the tumultuous events of 2008/9 — when the California Supreme Court ruled that same-sex couples have  a right to marry under the state constitution, the voters passed Proposition 8 taking that right away, and then the Supreme Court ruled in 2009 that California constitutional law after enactment of Prop 8 required that domestic partnerships carry all the same rights as marriage — it is clear now.

Which raises an interesting question about the opinion by Acting Presiding Justice McKinster.  Why not just declare that D.F.’s right to seek custody is presumptively established by her domestic partnership status at the time the child was born?  Instead, the court goes through the analysis of the Elisa B. case to independently establish D.F.’s parental rights apart from any presumption.  In a footnote, the court suggests that D.F. did not rely on the presumptive parentage doctrine to see her parental rights affirmed by the court.  But these short-cuts and presumptions exist in support of judicial economy, so it would undoubtedly have been better for the court to apply the presumption without engaging in the extended factual analysis, which sends the wrong signal to trial courts in the state. 

Perhaps this will all be rendered superfluous when the U.S. Supreme Court ruled in Hollingsworth v. Perry next month.  One can hope.

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