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.