A Few Further Thoughts About Charisma v. Kristina

A few days ago I wrote about a not-terribly recent CA case, Charisma v. Kristina.   (You might want to read that discussion first.)  There’s one aspect of the case I’ve been thinking about:  Charisma won in large part because she convinced the court that she should be treated just as a similarly situated man would be.    

There’s an old and well-established legal doctrine, incorporated into the law of many states, that provides one avenue to parentage for unmarried men.   Essentially, if a man holds a child out as his own (sometimes for a particular period of time) he will be presumed to be a parent of the child.    I’ve written about this a bit in the past. 

California does have a version of holding out–where a man “receives” a child into his home and holds the child out as his own child, he is presumed to be the father of the child.  (Interestingly, he is presumed to be the natural father of the child.   “Natural father” frequently means genetically related father,  but as the court notes, it does not always mean that and in this case it has a broader meaning.)

One main stumbling block for Charisma is that and Kristina separated not that long after the child was born.  Thus, Charisma did not spend that long with the child before they were separated.   One doctrine that lesbian mothers frequently rely on, the de facto parent doctrine, works better if they mother/child relationship has lasted for a longer time. 

But this, I think, is where Charisma’s demand to be treated as a man would be helps her.   The holding out doctrine doesn’t have a durational component.  Indeed, that’s the what the court spends the bulk of the opinion discussing.  So the fact that the relationship may have survived for only a few months is not determinative–she received the child into her home and held her out as her own child.     

Now why isn’t there a durational requirement for holding out when there is a durational requirement for virtually all de facto tests?   Probably because the whole point of the holding out doctrine was to help find fathers for the children of unwed mothers.   You wouldn’t want to make that test too difficult, or it would impede your ability to find fathers.   Further, I suspect it was impossible to believe that a man would hold himself out as the father of child without some very good reason. 

I guess what this suggests to me is that Charisma benefited from a doctrine that is rather gendered–and gendered male.   There’s no reason she shouldn’t, but it’s still vaguely ironic.


12 responses to “A Few Further Thoughts About Charisma v. Kristina

  1. I guess in a jurisdiction that would apply parenthood to a non-genetically related male (something I also have many misgivings about), a lesbian partner could claim the same rights.
    (However I would draw the line if the biological father was in fact available and in the picture).

    • I think in an effort to ensure that children have a legal father, the law has accepted men as parents without too much regard for the genetics. This is, of course, mostly in cases where there are too few candidates for parenthood rather than too many.

      As for preferring the biological father, would it matter how long elapsed before he was in the picture? It seems like one might want to get the child anchored to adults while it is still young and it would be much harder to do that if people could be ousted upon the appearance of the biologically related male.

  2. Hmm. In general I oppose turning everything into an issue of monetary compensation, as I believe certain losses are cheapened when translated into financial terms. The loss of a relationship is certainly one of them.

    However, if a person carried out parental duties under the assumption that they were to become the child’s parent, and then a conflicting claim of parenthood stepped in, perhaps some compensation should be required of the claimant.

    This might ensure that the claimant will only step up if he/she means it.

    On the other hand, I don’t want to discourage fathers from stepping up to the plate simply because they are of modest means.

  3. I realize that this doesn’t directly address the question of the time frame. Certainly a time frame is necessary although I can’t say for certain what it should be.

  4. Time is a very important factor, because part of the rationale behind recognizing the biological mother’s partner as parent is that the child will grow up in one intact household. When early on in the child’s life it becomes clear that recognizing both as parents would mean that the child will grow up in a divided household, that part of the rationale disappears. And if there is a biological parent ready and willing to pick up the buck, I see no benefit whatsoever in rejecting him in favor the mother’s now estranged partner.

    However, I can not say with certainty how early on would be too early or too late.

    • It seems to me that sometimes the unified household argument will support recognizing a non-biologically-related but present and willing adult as a parent instead of a biologically-related-but-estranged adult. Or it (the unified household point) might argue in favor of recognizing only one parent, rather than forcing the child to become a pawn in a really bad relationship between the two parents.

      I don’t mean to attribute these positions to you, but rather to highlight how emphasizing particular factors in one case or another can lead to a whole string of results.

  5. I suppose this would relate to the discussion of forward vs. backward looking: At what point does it become forward looking and at what point backward?

  6. I don’t support the farce of creating parents out of non-genetically related people. The whole idea seems very repugnant to me. This would also effectively stop men who are unsure about whether they might want to have a permanent relationship with the mother from cohabiting on a trial basis.

    • I don’t agree it is a farce–which I think suggests it is a joke of some sort? If a man is willing to undertake the role of father, without knowing or caring whether he is genetically related, if he has a good relationship with both the mother and the child, and if he actually embarks on the role in a responsible manner, there’s nothing farcical about recognizing his parenthood.

      There’s actually a string of cases where men meet women who are pregnant and agree to serve as a father to the child. Where they follow through and demonstrate a real commitment to the child, shouldn’t we see that as positive behavior?

      It’s not simply co-habiting with a mother that will give rise to this, by the way. The man has to present the child to the world as his son. Which is to say, he has to present himself as the father of the child. So you would look for things like introducing the child as “my son” or “my daughter.”

  7. I do not understand your last comment, Sandy, what is the connection between the two?

  8. I mean that if there is no minimum duration then a man who is co-habiting with the mother could be badly stung with child support if he did not explain to everyone they came into contact with that he is not the child’s father.

  9. I see your point. Of course, it would be even worse for him if he actually married the mother and became a step-father.

    But the situation is different- in one case the partner seeks parental status and in the other he rejects parental status. Should the law differentiate based on the partner’s wishes?

    Certainly in a decision that falls back on the criteria of intent, the step-father would be in no danger if he did not want to assume parental status.

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