Here’s a case from CA that follows a path similar to one taken in a case I discussed last week. As in that earlier case, a female second parent claims parental status by invoked the gender neutral version of the holding out doctrine. The court’s discussion of that argument in this case highlights some critical points.
First the facts: In 2002 JV was in a relationship with Brian P. She became pregnant. (I realize we’re all likely to assume that Brian P is genetically related to the child, but you’ll find, as you read on, that this has never been established. There’s a bunch of interesting side issues raised by his role which we can discuss if anyone cares to.)
The relationship between Brian P and JV fell apart during her pregnancy and he played no role in preparations for the birth of a child. (He’s only played the most minimal role since then.) JV, however, became friends with EC and she (EC, I mean) was willing to step up and step in:
During respondent’s pregnancy, appellant took respondent to her doctor’s appointments. Appellant was respondent’s Lamaze childbirth preparation class partner, and they often spent the night at each other’s homes. Appellant was with respondent during the birth of the minor; appellant even cut the umbilical cord.
For the first three months JV and the child lived with JV’s mother. Then they moved in with EC. Over the following years EC signed the child up for kindergarten and took her to various practices and doctor’s appointments. From the accounts of witnesses, she acted as a parent to the child.
The two women had begun this relationship as friends but at some point they became a couple. Alas, as couple’s are wont to do, they split up on 2008. The child was nearly five. At first, JV allowed EC to visit the child but within a year JV terminated EC’s contact with the child.
EC went to court to establish parental rights. She argued that she had held out the child as her own child and thus was entitled to the status of presumed parent. JV asserted that EC had never been a parent but only a godmother.
The lower court heard a lot of testimony and eventually ruled for JV. EC appealed. The opinion I’ve linked to is the decision on appeal. The appellate court, as it must, accepts the facts that were determined by the trial court. But the appellate court does not accept the legal analysis of the trial court. The case is remanded so that the trial court can try the analysis again.
Three points warrant emphasis. First, the fundamental error that the trial court made was focussing on the relationship between JV and EC (the two women) rather than focussing on the relationship between EC and the child. Holding out confers rights on a person not because of her/his relationship with an existing parent but because of the relationship with the child. Thus, whether JV and EC were friends or lovers or whether they were open about the nature of their relationship is irrelevant. What matters is the way EC and the child presented themselves to the world. If they presented themselves as parent and child, then the holding out doctrine kicks in. The earlier cases discussed by the court include some where it is quite clear that the holding out parent is not the romantic partner of the other parent.
Second, the court discusses the relationship of holding out to other bases for claiming parentage. (I know this part will make some people unhappy.) As to genetic connection, citing an earlier case with approval the court here says:
[L]iving with a child and treating that child as a son or daughter creates a relationship between the alleged parent and the child that is more important to the child than a biological relationship.
And as to JV’s assertion that there was no intention for EC to be a parent, it declares:
Respondent’s intent is only relevant if she manifested that intent through her conduct and precluded appellant from holding out the minor as her natural child.
(Page 17.) Both of these statements are striking to me.
Finally, and consistent with the other case I blogged about, the case confirms the determination of California courts to use holding out for both men and women claiming parentage. This is potentially a very important step and could diminish the importance of the de facto parent test that has been developed over a long series of cases. Holding out has always been easier to show, but it’s also been generally reserved for men until now.
In the end the case here is remanded to the trial court. Essentially the trial court has another chance to do the legal analysis properly–it’s told to determine whether EC held the child out as her own. Given the facts here I would expect that the court will make that finding, which means it must move on to other determinations.