Metropolitan News-Enterprise


Monday, June 29, 2009


Page 1


Appeals Court Upholds Ruling on Same-Sex Parenting

Panel Says Separation Months After Child’s Birth Did Not Rebut Statutory Presumption




The domestic partner of a woman who conceived a child by artificial insemination was properly found to be the child’s other parent, even though the couple separated three months after the child was born, the First District Court of Appeal ruled Friday.

Div. Five affirmed an Alameda Superior Court judge’s ruling that Charisma R., as she was identified in the opinion, is entitled to a parental relationship, including visitation rights, with Amalia, the 6-year-old daughter of Kristina S.

The parental relationship was found under Family Code Sec. 7611(d), which says that where the mother is unmarried or her husband’s lack of paternity is established, a presumption of parentage arises in favor of a person who “receives the child into his home and openly holds out the child as his natural child.” The presumption may be rebutted by clear and convincing evidence that a finding of parentage would be inappropriate.

In its previous ruling in the case, Charisma R. v. Kristina S. (2006) 140 Cal.App.4th 301, the appellate court held that the lack of a biological relationship was not fatal to Charisma R.’s claim to be a presumed parent under the statute, and sent the case back to the trial court.

On remand, the trial court ruled that Charisma R. was a presumed parent, and that the presumption was not rebutted by clear and convincing evidence. The appellate panel agreed, holding that Sec. 7611(d) does not require that a child live with the person for any particular length of time in order for the presumption to apply, nor does it require a particular minimum contribution in terms of parenting time or financial support.

Charisma R. filed her petition under the Uniform Parentage Action in May 2004. She presented evidence that she and Kristina S. had lived together from 1998 until Kristina S. moved out with the child in July 2003, had registered as domestic partners in 2002—Kristina S. dissolved the partnership around the time she moved out, and subsequently moved to Texas—and had mutually planned Kristina S.’s pregnancy with the understanding that they would raise the child together.

She also presented evidence that she was present during Amalia’s birth and cut the umbilical cord; gave the child a hyphenated last name including her name on the birth certificate; held herself out as Amalia’s mother in a birth announcement, a baby shower, a gift registry, an online message board for women trying to conceive and communications with various people, including the nurse at a “well baby” visit, a visiting former co‑worker and strangers in the street; shared Amalia’s care until her mother went back to work; and cared for Amalia after Kristina S. returned to work and up until the mother took the child and left.

Kristina S. responded that the three months they spent together as a family was too brief to meet the code’s requirement that the child be “received” into the home for presumed parent status to apply. She also contended that Charisma R. was too irresponsible to be a parent, noting that she had posted photographs of newborn, naked Amalia, including photographs of her being breastfed, online.

Justice Mark Simons, writing Friday for the Court of Appeal, said there was nothing in statute or case law to support the contention that three months was too short a time in which to establish a parental relationship, and said the court was being asked to “judicially rewrite the statute.”

He also rejected Kristina S.’s contentions that she was being denied equal protection of the law, based on her gender, and that she was being deprived of her due process right to rear her child.

Nothing in Sec. 7611(d), the justice said, treats women who claim presumed partner status more favorably than men, or treats mothers less favorably when the person claiming that status is a woman.

As for the due process claim, the justice distinguished Troxel v. Granville (2000) 530 U.S. 57, which struck down an order requiring a single mother to allow her children’s paternal grandparents to visit the children according to a schedule imposed by the trial judge. The principles of that case apply to non-parents, not to a person who has established that he or she is a legal parent of that child, Simons said.

Kristina S., he said, “presents no authority or reasoned argument that a state infringes on a biological parent’s substantive due process rights by extending parental status to a nonbiological parent in the circumstances of this case.”

The court Friday also ruled in favor of Charisma R. on her cross-appeal, saying the trial judge erred in ruling that he lacked discretion to require Kristina S. to pay a portion of Charisma R.’s visitation-related travel costs.

The case is Charisma R. v. Kristina S., 09 S.O.S. 3940.


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