Monday, August 6, 2012
Court of Appeal Rules:
Lesbian Retains Joint Custody of Child Adopted by Former Partner
By a MetNews Staff Writer
The Fourth District Court of Appeal has upheld a determination that the former live-in female sex partner of a woman who in 2001 adopted a child, during their relationship, is that child’s “second mother.”
The opinion by Justice Joan K. Irion of Div. One affirms a judgment by San Diego Superior Court Judge Susan D. Huguenor recognizing the plaintiff’s parental status. The opinion acknowledges that the holding goes beyond any previous decision because neither partner in the present case was the natural mother.
An action to establish a parental relationship with the child, then 9, was brought on May 3, 2010, by Laura Mustari, chief executive officer of Home Start, a non-profit group seeking to protect at-risk children. The defendant was the adopting mother, Maureen Gray, president and founder of a multimillion-dollar janitorial firm, who had been Mustari’s same-sex partner from 1998-2003.
(They had not been registered domestic partners.)
After the pair split up, Gray voluntarily accorded Mustari frequent visitation privileges, and the child referred to Mustari as “mom” or “mommy.” However, when Gray announced in 2009 that she and her registered domestic partner would be going to Europe with the child for 18 months, Mustari instituted what was akin to an action to establish paternity, in the course of which she attempted, unsucessfully, to block the trip.
The question was left open by Huguenor as to whether the child could be kept away the full 18 months.
Joint Custody Granted
Huguenor granted joint legal custody to Gray and Mustari. She found that Mustari had welcomed the child into her home and held him out to the world as her natural child—the standard for rebuttably presuming paternity, under Family Code Sec. 7611, on the part of a man disclaiming it.
In affirming on Thursday, the appeals court relied heavily on the California Supreme Court’s 2005 decision in Elisa B. v. Superior Court 37 Cal. 4th 108. There, it was held at 113:
“In the present action for child support filed by the El Dorado County District Attorney, we conclude that a woman who agreed to raise children with her lesbian partner, supported her partner’s artificial insemination using an anonymous donor, and received the resulting twin children into her home and held them out as her own, is the children’s parent under the Uniform Parentage Act and has an obligation to support them.”
The opinion said:
“We perceive no reason why both parents of a child cannot be women.”
Gray argued on appeal that Elisa B. was inapposite and that a finding of an additional parent for her child was precluded because the decree she obtained granted a single-parent adoption—which meant, as her argument was characterized by Irion:
“[T]his is not a two slot parent family. It is a one slot parent family.”
Irion rejected that contention, as well as others put forth by Gray.
Court Uses Initials
Although the relationship between Mustari and Gray had not been kept secret by them and is reflected in San Diego Superior Court records, the Court of Appeal opted to refer to them as “L.M.” and “M.G.”
Irion’s opinion says:
“The record contains no evidence that the issue of whether the Child could have only one parent was raised or decided in the adoption proceedings.
“Thus, although the adoption decree obtained by M.G. implicitly served as an adjudication that the Child’s best interests were served by conferring parental status on M.G. and severing the Child’s legal ties with his birth parents, there is no basis to characterize the adoption decree as establishing that, regardless of future developments, the Child should be limited to only one parent.”
Citing Elisa B., Irion said that “[i]t is now well established that a child raised in a same-sex relationship may have two mothers,” and invoked another case decided the same day—Kristine H. v. Lisa R., 37 Cal.4th 156—where the Supreme Court declared a “public policy favoring that a child have two parents rather than one.” (In that case, a biological mother was held to be foreclosed from attacking the validity of a stipulated judgment that her lesbian partner was also a parent of her child.)
“Against this background,” Irion wrote, “we reject M.G.’s interpretation of the adoption decree as a judgment establishing that the Child may have only one mother.”
Justice Cynthia Aaron joined in the opinion and Acting Presiding Justice Richard Huffman concurred in the result.
The case is L.M. v. M.G., 2012 MetNews 3945.
Copyright 2012, Metropolitan News Company