Metropolitan News-Enterprise


Friday, January 20, 2012


Page 1


Appeals Panel Revives Same-Sex Partner’s Bid for Parental Status




Problems in the relationship between a mother and her same-sex partner do not justify denial of presumed parent status to the partner, the Third District Court of Appeal ruled yesterday.

The justices reversed a San Joaquin Superior Court judgment denying a petition by E.C., as she was identified by the court, to establish a parental relationship with a child identified as L.V.

The court, in an opinion by Presiding Justice Vance Raye, sent the case back to the trial court “to exercise its discretion with a clear understanding of the [Uniform Parentage Act] and its purpose.”

L.V., the court explained, is the daughter of J.V. and Brian P. The parents had a brief relationship, which ended before their child was born.

J.V. and E.C. became good friends after J.V. and Brian P. separated. E.C. took the mother-to-be to medical appointments and became her partner at Lamaze classes, and the couple took turns staying overnight at each other’s homes.

They later began a sexual relationship that lasted five years, although they never filed domestic partnership documents. E.C. joined the Air Force in 2005, and J.V. and the child moved in with E.C.’s mother, with E.C. signing the child up for school and listing herself as “step-parent or legal guardian” on the registration form.

The relationship ended in 2008, when the child was nearly five years old. Although the parties initially agreed that E.C. could spend time with the minor, including some holidays, J.V. eventually stopped allowing her ex-partner to visit, according to testimony, and E.C. filed her parentage action.

Family Unit

Friends and relatives of E.C. testified that they always considered the couple and the child to be a family, while J.V. and her witnesses testified that while E.C. was supportive of the child, she was only a godmother, and was never referred to as a parent. J.V. testified she never intended for E.C. to have parental rights.

Judge Xapuri B. Villapudua ruled that the plaintiff did not meet the standard of a presumed parent under Family Code Sec. 7611(d), part of the UPA.

The judge explained that the parties “did not register as domestic partners...did not participate in a commitment ceremony...did not make a conscious decision to have a child and raise it as theirs before [the minor] was born...did not live together immediately after [the minor] was born and waited to tell their families about their relationship.”

Villapudua further noted that the plaintiff and the child lived apart for part of the time prior to the ending of the relationship, that the families initially believed that the couple were only friends,  that the child did not have the plaintiff’s surname, that plaintiff did not claim the child as a dependent for tax purposes, and that the mother considered the plaintiff to be her “long-term girlfriend” and the child’s godmother, not a second parent.

Raye, however, said the legal analysis was incorrect.

Prior Cases

Prior cases, the jurist explained, have established that a presumed parent need not be a spouse or domestic partner, nor have lived with the other parent, “and may not have even known the other parent.” A presumed parent, he explained, is “someone who has demonstrated an abiding commitment to the child and the child’s well-being, regardless of his or her relationship with the child’s other parent.”

The trial judge, he said, erred in basing her decision on the nature of the parties’ relationship with each other, rather than on the nature of the plaintiff’s relationship with the child, and in giving too much weight to the defendant’s stated intentions and too little to her actual conduct.

In order to establish presumed parent status E.C., Raye explained, was required to show that she received the minor into her home, and that she held the child out to be her own. If those requirements were met, then E.C. is presumed to be the second legal parent, and the burden would be on the defendant to show that granting parental rights would be detrimental to the child.

As to the first issue, Raye said, the evidence in the plaintiff’s favor was “uncontroverted.” The jurist noted that the parties moved in together when the child was three months old, and that the plaintiff moved the defendant and the child into the home of the plaintiff’s mother when the plaintiff left for the service—and that she held the child out to be her own.

As to the second issue, the presiding justice said there was evidence from which the trial judge could have found that this requirement was met as well. Since Villapudua did not expressly rule on the question, Raye said, the case must go back to the trial court.

“[O]n this record, respondent’s ‘intent’ does little to demonstrate appellant’s commitment to the minor or lack thereof, because while respondent may not have intended for appellant to obtain any legal rights to the minor, the record is replete with evidence that she allowed, even encouraged, appellant to coparent the minor from the beginning,” Raye explained.

The trial judge, he added, also erred in considering the fact that the couple had not planned to have a child together.

“As with heterosexual couples, the failure to plan for a child does not demonstrate an alleged parent’s lack of commitment to that child’s well-being; it is the alleged parent’s conduct after the child’s conception and birth that does so,” he wrote.

The case, he said, must go back to the trial court for a ruling on whether E.C. held the child out as her own, and, if so, whether J.V. has rebutted the presumption of parenthood under Family Code Sec. 7612.

The case is E.C. v. J.V., 12 S.O.S. 236.


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