Metropolitan News-Enterprise


Wednesday, November 14, 2018


Page 1


C.A. Affirms Parental Rights for Mother, Two Fathers


By a MetNews Staff Writer


The Third District Court of Appeal yesterday affirmed a lower court’s ruling granting a man parental rights over the girl he conceived with a married coworker, even though the woman and her husband are also the child’s legal parents.

The opinion was written by Justice Elena J. Duarte, and affirms the judgment by Placer Superior Court Judge Suzanne Gazzaniga.

Although the mother initially kept her daughter’s true parentage secret from her husband, she later told him, and the two remained married. (The opinion identifies the wife and her husband as C.P. and J.P., respectively; the child’s biological father is identified as C.A.)

The girl’s biological father was involved with her upbringing and developed a bond with her, until, when the girl was three years old, he filed the petition seeking legal recognition of his parental rights. After the petition was filed, the couple excluded him from seeing their daughter.

Duarte noted that it was “a ‘rare’ case where, pursuant to statutory authority, each of three parents should be legally recognized as such, to prevent detriment to their child.”

Presumed Fathers

The jurist began her analysis by citing the presumption that a child born during a marriage is the child of the married couple.

“The presumption sets out a substantive legal rule in California,” she said.

Family Code §7540 provides that “the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”

The mother and her husband argued that, because the husband is the girl’s presumed father, the man cannot also be her father.

The girl’s biological father relied on Family Code §7611(d), which makes a presumptive parent any biological parent who “receives the child into his or her home and openly holds out the child as his or her natural child.” The man had done both of those things in the three years leading up to his petition, Duarte said.

Three Parents Permitted

Duarte cited Family Code §7612(c), in division 12 of that code, which states in part:

“In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child.”

She wrote:

“The fact that defendant husband’s claim to parentage arises from a conclusive statutory presumption (§ 7540) and plaintiff’s claim arises from a rebuttable statutory presumption (§ 7611, subd. (d)), does not change the fact that each man has a claim that arises ‘under’ division 12 of the Family Code.”

She looked to the legislative history of §7612. A statement of legislative intent included with the bill during the 2013-14 session said:

“Most children have two parents, but in rare cases, children have more than two people who are that child’s parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm.”

Mother’s ‘Misleading Portrayal’

Gazzaniga had found that the girl’s mother had made a “misleading portrayal” of the extent to which the biological father had been involved in her life. That portrayal had convinced the judge to deny the man a temporary visitation order during the pendency of his petition.

The mother and her husband, in turn, argued that the period of time during which the man was not a part of the girl’s life had broken the bond she had with her biological father.

Duarte disagreed. She wrote:

“The mere fact plaintiff and the child had not seen each other for some time before the trial did not mean there was no extant bonded relationship, as defendants assert.…Although defendants warp specific words and phrases from the court’s ruling to argue it found no bond existed, the court found plaintiff ‘has an existing and significant bond’ with the child. The passages on which defendants rely addressed how to cure the interim harm to that extant bond caused by the involuntary separation defendants themselves caused.”

The opinion notes that the mother led the biological father to believe she was separated from her husband; the man apologized to the husband, and made it clear that he only wanted to continue his relationship with his daughter. Gazzaniga noted that the husband at trial had “expressed his renewed commitment to” his wife.

The case is C.A. v. C.P., C084473.


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