Keeping Your Eye on The Right Relationship: Another CA Lesbian Claims Holding Out Parentage

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.

(Page 13.)

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.


10 responses to “Keeping Your Eye on The Right Relationship: Another CA Lesbian Claims Holding Out Parentage

  1. Julie I grew up in a town where equal weight is given to same sex partners as to married people, in the minds of the population if not always the law we generally accept that a couple is married if they assert that they are married etc. So giving equal weight to either type of relationship it seems to me that your reasoning for not wanting men to automatically become parents of their offspring should be applied to not wanting your housemate/good friend/lover whatever to bond with your kid and then get bent all out of shape if you try to break the relationship off for whatever reason. They can go claiming parenthood and keep you from relocating etc why does one bother you more than the other. The whole interloper thing freaks me out. I mean if taking a person to medical appointments and being attendance at the birth is enough to make a person a parent at birth – i mean doing stuff before the kid even exists so that there is no relationship established with the child and they can claim to be a parent? What up? And if you agree with this then you disagree with your previous preference for romantic partners banding against a bio father who had planned on being there for his child or you disagree with the idea that two good friends should make a baby together

    • I think it’s important to look at the sum total of the conduct, not just bits of it. Thus, I don’t think going along to prenatal appointments is enough. Neither is being there to cut the cord. (The cord-cutting might be interesting because it is one of those things that is freighted with social significance, but it’s just a data point.) What you’ve got here is way more than that. Years more.

      You can see from the opinion that the court is aware of the boyfriend/girlfriend problem, or the interloper problem or whatever you want to call it. You don’t get status by being a live-on partner. That’s part of why focussing on the relationship between the adults is a mistake. This isn’t an expansion of parenthood conferred by marriage.

      What matters here is the relationship you forge with the child. And if a parent lets another person act like a parent to my child for five years, they cannot just cut them out anymore. They’ve given up that right (which they clearly had at the start), not because it’s what is fair to the other adult, but because it is what is important to the health and well-being of the child.

      What worries me with regard to men is that we give men who have no connection to the child the same power simply by virtue of DNA. But in a case like this, it seems to me that finding the person a parent is the right result whether they are male or female.

  2. “What worries me with regard to men is that we give men who have no connection to the child the same power simply by virtue of DNA.”

    Where do you see that in this ruling? No one is saying that men who have abandoned their child should be accorded parental status.

    And if I here the silly “even cut the umbilical cord” arguement one more time I’m going to scream. I’ve cut many an umbilical cord in my life and been present at many a birth, and not always for pay, and am a parent to none. This means absolutley ynothing.

    • Sorry–I wasn’t clear. This case does not make the point you raise at all. But insisting on the primacy of genetic connections takes you there–so that the one night stand guy with no other connection to the woman or the child is a legal parent.

      I won’t say that cutting the umbilical cord means nothing–I wouldn’t ask a total stranger. It does suggest some involvment with the pregnancy, which might well be professional. But I will agree that it means very very little. Hope that is enough.

  3. I’m not willing to go so far as to declare EC a parent, but if JV allowed her child & EC to develop a close, loving custodian-child relationship then JV has no right to take that relationship away from her child. If she can prove that EC is a danger to the child, then let her present that evidence at a hearing for a judge to decide. Otherwise, EC should be allowed visitation with the child & some limited guardianship rights. If JV is unhappy with that then so be it, she allowed this relationship to develop. Since she did, the relationship now belongs to her child & is not JV’s to take away.

    • Kenny my brother was dating a woman who owns a daycare while I was pregnant with my daughter. She took care of my daughter from 3 months until 4 years. That woman became my best friend and we spent every waking second together outside of work. I am the worst most non maternal person ever if it were not for my friend I never would have known when to feed my daughter or when to take her to the doctor. My daughter spent more time with my friend than with me because I had to work.

      My daughter was mortally wounded when she abruptly cut off our friendship and stopped allowing my daughter to come to the daycare. My brother was cheating on her. To my daughter she was like a parent, brought her to the doctor picked her up from school – but she is not and she can cut the relationship off and so can I. My daughter is messed up from it real bad but – people who are not parents have that leway. So I let her get that close with my kid but she better not try and say she’s a parent.

      • First, I hope you do not mean that your daughter was literally mortally wounded. I’m going to proceed on the assumption that this was a figure of speech.

        I won’t say whether this woman was or was not a parent. I cannot tell from what you say. She could have done all the things you describe and it could have been pretty clear all along that no one thought she was a parent. Or she could have done all the things you describe and it could have been pretty clear all along that she was meant–by you, by her, by others around–to be a parent. It isn’t only the physical acts that matter. A parent-like relationship has all sorts of layers of thickness and meaning. This is what makes it difficult to tell in many cases and it is also what makes me unwilling to offer an opinion based on an outline of the evidence.

        If you had thought of this woman as a parent, if she had thought of herself as a parent, if everyone around her thought of her as a parent, then I think she loses the right to just walk away and you lose the right to kick her out. (It does matter to me for how long this goes on, too.)

        No one would get to claim this sort of parenthood over the objection of the first parent unless the first parent were either incredibly inattentive (and paid no attention to what was going on in her/his child’s life) or complicit.

    • I have no qualms with EC or the JV’s child terminating the relationship. JV, on the other hand, has no right to cut off the relationship. It doesn’t belong to JV. It belongs to EC and the child and it’s theirs to keep or abandon. JV created this situation. She needs to accept it and move forward.

      • I think this is rather the view of the court. Whatever JV was thinking, she acted in ways that created this situation and now it is real. The ideas about what it was supposed to be like don’t matter so much when you stack them up against the reality of what the child’s life really is.

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