CA Lesbian Mother Decision Stands–Supreme Court Denies Review

Long ago I meant to write about a CA appellate court decision in Charisma R. v. Kristina S.   (A word about that link–I don’t think it will take you to the actual opinion, but rather to the page that allows you to enter into the appellate court opinion portion of the website.  You might need the cite (96 Cal. Rptr. 3d 26) to get to the actual opinion.)   This was back in June, 2009.  

One thing and another intervened and I don’t think I ever wrote about the case.  The CA Supreme Court affirmed without opinion, so that wasn’t much to write about, either.  But earlier this week the US Supreme Court declined to review the case, which brought it (briefly) back into the news.   On the “better late than never” theory, I figured I’d use that as an excuse to write, particularly since a recent post on a CA lesbian mother case has been a lively spot for discussion here. 

Charisma and Kristina began dating in 1997, moved in together in 1998 and entered into a domestic partnership in January, 2002.   Just before that, they decided they wanted to have children.   After some effort, Kristina became pregnant and a daughter, Amalia, was born in April 2003.  

For the first six weeks of Amalia’s life, the two women shared parental obligations.  At that point Kristina went back to work and Charisma took over full-time parenting responsibilities.  Sadly, the relationship between Charisma and Kristina did not last much longer than that.   Kristina and Amalia moved out in July, 2003, roughly four months after Amalia was born.   

In May, 2004, Charisma sought recognition as a legal parent.  Kristina had allowed her to see Amalia a couple of times over the summer the separated, but had blocked all visitation after that.  In 2005 Kristina moved Amalia to Texas.  

This is one of those cases made much harder by the passage of time.  Charisma initially lost, the court finding she was not a parent.   She appealed this ruling, but there was a further substantial period of time during which she had no contact with Amalia.  In time the ruling was reversed and the case returned to the trial court for more hearings.  In May, 2008, the trial court adopted a plan that would allow for Charisma’s gradual reintroduction into Amalia’s life.      The appellate opinion is the appeal from that order.

Charisma’s ultimately successful claim was that she was entitled to be treated the same as a similarly situated man would be.   If a man had conducted himself as Charisma had, he would be a presumed parent under California law.   (This law is dictated by virtue of a California statute.)  Since the law is to be applied in a gender-neutral fashion, Charisma sought to have the same principle applied to her.  

The California Supreme Court had already adopted this reasoning in an earlier case involving lesbian mothers, Elisa B.   (This is what led to the reversal of Charisma’s original loss.)   Kristina sought to distinguish this case because Charisma only lived with Amalia for a short time.    The court rejected her argument because nothing in the language of the statute suggested that there was a particular period of time that had to elapse.   The statute required only that the person receive the child in to her/his home.   As I said, the United States Supreme Court has refused to review the decision so it is now final.    Charisma has been allowed to spend time with Amalia since the appellate court rule. 

It’s an interesting case to think about from a variety of perspectives apart from CA law.   I’ll come back to that shortly.

13 responses to “CA Lesbian Mother Decision Stands–Supreme Court Denies Review

  1. The question that I would have is does she (Charisma) have to pay child support???

    • She’d have (has) the same obligation to pay child support as any other legal parent. In fact, Elisa B, the CA Supreme Court case upon which the appellate court here relies, is specifically about the obligation of a person in this situation to pay child support.

  2. I prefer the Oregon interpretation of the “presumption of paternity” concept: That it can not be presumed what is clearly impossible.

  3. I also have to say that this ruling leaves me to doubt the wisdom of “domestic partnership”. I had previously supported it because I feel it provides all the rights of partnership but acknowledges the fundamental difference from marriage, which is a reproductive unit.
    If courts are not going to acknowledge that than I’d say it’s pointless.

    • I am not clear on what you mean here. The rights regarding parentage are among the most important rights associated with marriage. It would be difficult to describe DP as providing all the rights of marriage without including the rights to be considered a parent based on consent for your spouse to undergo insemination. Do you mean to suggest that somehow extending the same treatment to DPs makes DP useless?

      • Sorry for being unclear. I oppose gay marriage because I believe that marriage is a word that unequivally tied to reproduction and childraising(despite the fact that not ALL married couples reproduce), a definition that you and many gay marriage advocates seem to support.

        I oppose extending the concept of marriage to include same sex precisely because of the muddy issues of identity and parenthood raised on this blog, which occur these two separate forms of relationships are treated as one and the same.

        I would however, like to see gay people who practically speaking can not marry, have their relationships respected by any sort of financial sharing arrangements or other benefits that the law accords to next of kin (although I don’t think there are that many), as well as right to adopt.

        The concept of a legally recognized union committed to permanence that is not the same as marriage would have allowed for these things. That is why it was supported by people from opposite ends of the spectrum.

        However, if the concept of a same sex domestic partnership is but a stepping stone to equating same sex relationships with heterosexual marriages, than I really see no point. The choice is between marriage or no recognition at all.

        • To be clear, I don’t see that as an institution marriage is tied to reproduction, nor that it has been historically. People with no intention of producing children are and have been permitted to marry. Ditto those without the capacity to produce children. Infertility has not been a basis for dissolving a marriage (although interestingly, impotence has been.) We have, howeevr, tied parentage doctrines to ,arriage–most importantly the presumption that a child born to a married woman is a child of the husband.

          Given our DNA testing capacities we could (and mind, I say “could” not “should”) tie parentage to DNA and entirely eliminate marriage from the analysis.

  4. Tragic result for the child who will now be split between two homes and have all the complications of having separated parents except that one woman is just a stranger. BTW I also believe that treating an unrelated man as a father is wrong, so I’m also gender neutral in my viewpoint.

    • I suppose the extent to which it is actually tragic for the child depends on the way the adults involved conduct themselves. I think there are children of separated parents who have beneficial relationships with both parents. But it does require the parents to treat each other with a certain level of respect.

      I’m going to return to the point about how men are treated with regard to this in a post shortly, so I’ll say no more about that for now.

      • True, a lot depends on how the adults conduct themselves. However, it makes sense to differentiate between the biological parent and a non biological parent.

        In the case of a biological parent, the child will almost certainly be aware of his absence. Though cases may very , I think in general that overrides the potential pitfalls of conflict between the two households.

        In the case of a non biological parental substitute, who has not yet established a long term relationship with that child, the child will not suffer from her absence, so there really is nothing positive to outweigh the negative aspects of the conflict. (Well, perhaps the economic benefits, but would that weigh strongly enough?)

  5. What I’m curious about with this case is the timing.

    Domestic partnership in California went through a change during the course of the litigation.

    To dissolve domestic partnership in 2004 was a matter of one partner filling out a form and mailing it in.

    After 1/1/2005, dissolving a domestic partnership required trips to family court (really, divorce court).

    One of the upgrades DP received in 2005 was the presumptive parent doctrine.

    If the child had been born after 2005, it would not have mattered if the child were parented by both mothers or not. The presumption would be that the child has two mommies, and the birth certificate would say so.

    • I think you’re right to point out the timing of this case. If the same facts arose now, the result would be reached via a different rational–the DP presumption of parentage.

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