Metropolitan News-Enterprise


Thursday, July 1, 2004


Page 1


Appeals Court Says Judgment of Parentage Is Void If Based Solely on Same-Sex Couple’s Stipulation


By DAVID WATSON, Staff Writer


A prebirth family court judgment purporting to establish a female couple’s joint parentage of a child conceived by artificial insemination was void if it was based solely on their stipulation, this district’s Court of Appeal ruled yesterday.

Justice Walter Croskey of Div. Three cited literature indicating that such orders may have become an increasingly common means for same-sex couples to attempt to establish parental rights in the wake of In re Marriage of Buzzanca, 61 Cal.App.4th 1410, decided in 1998.

“This judgment is apparently not the only one entered based on what we believe is a misreading of Buzzanca,” Croskey declared. “....We therefore must dispel any notion that Buzzanca can be read to support a prebirth parentage judgment based on a mere contractual expression of the parties’ intentions.”

A family court judge may not determine parentage based on a stipulation, but must instead apply the provisions of the Uniform Parentage Act, Croskey said. He explained that a temporary judge who heard the matter should have granted the birth mother’s motion to vacate the judgment, brought in the wake of the couple’s separation more than two years after the judgment was entered.

But Croskey went on to say that under a “gender-neutral” reading of Family Code Sec. 7611(d)—the “presumed father” statute—the woman’s former partner might be entitled to a declaration that she is the child’s second parent.

“The Act contemplates two legal parents irrespective of their gender,” the justice opined. “As a general proposition, it benefits both the child and the parents to identify as early as possible who is responsible for the child’s protection, guidance, and care. Establishing parentage offers the possibility of security and the advantages of two parents, which is beneficial to the child.”

The former partner—identified in the court’s opinion only as Lisa Ann R.—claimed in court documents that she and the birth mother decided to raise a child together. After failed attempts using a sperm bank, they succeeded with the help of a private donor in having a daughter, whom they raised together for two years before their relationship broke up.

Lisa and the birth mother, who was identified only as Kristine Renee H., obtained the parentage judgment while Kristine was pregnant. The judgment provided that Lisa “is the legal second mother/parent” of the unborn child and “shall be listed in the space provided for ‘father’” on the child’s birth certificate. It also provided for joint custody.

Though the family court had jurisdiction under the UPA to determine parentage, it “lacked the enter a judgment of parentage based on nothing more than the parties’ stipulation,” Croskey explained.

“The determination of parentage cannot rest on an agreement between the parties,” the justice wrote. “....The Act provides the basis upon which the family court is authorized to make a judicial determination of parentage....An agreement that attempts to establish parentage without regard to the provisions of the Act contravenes this strong public policy and cannot be supported.”

Neither Buzzanca nor the state Supreme Court’s 1993 surrogacy decision in Johnson v. Calvert, 5 Cal.4th 84, endorses “contractual stipulations of parentage based on the parties’ intentions without regard to the Act,” Croskey said, adding:

“In those cases the court looked at the parties’ intent as a part of the interpretation and application of the Act. Only when the Act was unclear or yielded an ambiguous result did the courts consider intent to determine parentage.”

Croskey noted that because the trial court ruled Kristine could not collaterally attack the judgment, no factual record beyond the declarations of the parties had been developed. On remand, he said, the court would have to determine if factual issues relevant to the judgment’s validity were in dispute.

It would also have to decide, he said, whether Lisa could qualify as a second parent under Sec. 7611(d).

Croskey took issue with the Third District’s decision last month in Elisa B. v. Superior Court, 118 Cal.App.4th 966, holding that a child may not have two parents of the same sex. The court in Elisa B. did not “read the Act in a gender-neutral manner to determine whether the nonbiological partner could establish parentage” under any of its provisions, Croskey said.

He noted that in at least two cases—In re Karen C. (2002) 101 Cal.App.4th 932 and In re Salvador M. (2003) 111 Cal.App.4th 1353—appellate courts have read the presumed father statute in a gender-neutral manner and relied on it to determine presumed motherhood.

“In our view, Elisa B. erroneously concluded that the presumption could not be applied in a gender-neutral manner to determine parentage in a second, nonbiological parent of the same sex,” Croskey wrote. To qualify as a presumed parent, Lisa would have to establish that she received the child into her home and held it out as her own, he explained.

Since the presumption is rebuttable, it would then be up to Kristine to rebut it under one of the provisions of Sec. 7612, he said.

The court’s conclusion was also “fully supported” by the “intended-parent doctrine,” which has been applied in cases where couples have created a child by “artificial reproductive means,” and was consistent with provisions of the Domestic Partner Rights and Responsibilities Act set to go into effect next year, the justice added.

Croskey cautioned that the court was not “endorsing a rule of law pursuant to which a third, or fourth person not biologically related to a child might also establish legal parentage.”

 He observed:

“[T]his case only involves a person seeking to become a second parent, so we have no occasion to address this issue. Our focus here is not on competing interests by several persons but on whether Lisa is a second parent.”

Justice Richard D. Aldrich and Presiding Justice Joan Dempsey Klein concurred.

Beverly Hills attorney Honey Kessler Amado represented Kristine Renee H. on appeal, while Encino lawyers Leslie Ellen Shear and Diane M. Goodman represented Lisa Ann R.

Among the organizations filing amicus briefs supporting Lisa’s position were the National Center for Lesbian Rights, the Lambda Legal Defense and Education Fund, the ACLU Foundation of Southern California, Legal Services for Children, the National Center for Youth Law, the Southern California Assisted Reproduction Attorneys, the Family Pride Coalition, and the Los Angeles Gay and Lesbian Center.


Copyright 2004, Metropolitan News Company