California Appeal Court Rejects Constitutional Challenge to Presumed Parent Status and Orders Reunification of Child with Lesbian Co-Parent

In a sharply contested child visitation dispute involving former lesbian partners that drew in the right-wing Liberty Counsel on behalf of the biological mother, the California First District Court of Appeal ruled on June 26 that a trial court order recognizing the parental rights of the co-parent and ordering reunification with the child after a lapse of many years did not violate the due process or equal protection rights of the biological mother. Finding record evidence supported the trial court’s conclusion that the former lesbian partner was a presumed parent and that the presumption had not been rebutted, the court also ordered the trial court to consider requiring the biological mother to help defray the reunification travel costs of her former partner. Charisma R. v. Kristina S., 2009 WL 1813148.

The women had lived together for several years and registered as California domestic partners when they decided to have a child through anonymous donor insemination. Kristina R. became pregnant. Charisma assisted throughout the pregnancy, was present at the birth and cut the umbilical cord, and the child was given a hyphenated surname on her birth certificate recognizing the parental connection with both women. Charisma assisted with child care during the first six weeks of life, and then became primary caregiver when Kristina returned to work. However, after a few more weeks, Kristina moved out with the child, and then moved from California to Texas to be with relatives. Kristina filed documents to dissolve the domestic partnership, and cut off contact between the child and Charisma, who filed suit in California seeking an order confirming her parental status and requiring Kristina to allow renewed contact. Years have passed since there was contact with the child.

The trial judge found that Charisma was a "presumed parent" pursuant to California’s parentage law, and that Kristina had failed to rebut the presumption. As a result, acting on the recommendation of child evaluators appointed by the court, the trial judge ordered that a process of supervised reunification be undertaken. However, when Kristina objected to being required to help defray Charisma’s expenses of traveling to Texas for reunification, the trial judge backed off, expressing doubt that this was the type of "runaway parent" situation where such an order could be made.

The Court of Appeal found that Kristina’s attempts through Liberty Counsel to undermine the trial court’s judgement was unavailing. At the heart of her argument was that Charisma’s parenting experience with the child was too brief for these doctrines to apply to her. It was a matter of just a few months between the birth of the child and Kristina’s action in moving out. But the court concluded that there was no durational test imposed by the statute, which finds presumed parental status when the non-biological parent "receives" the child in her home and acts as the child’s parent. Wrote Presiding Justice Simons, "We conclude that receipt of the child into the home must be sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship, but it need not continue for any specific duration. This conclusion is consistent with the public policy favoring a child having two parents to provide emotional and financial support, which prior courts have emphasized in interpreting the UPA. Although cohabitation for an extended duration may strengthen a claim for presumed parent status, section 7611(d) does not require that cohabitation or coparenting continue for any particular period of time."

Liberty Counsel evidently made the usual slippery slope argument that allowing legal status to a biological stranger would open the door to all kinds of invalid and intrusive parenting claims by non-parents, earning this rebuke from the court, in a footnote: "It is frivolous for Kristina to assert that extending presumed parent status to Charisma would justify extending such status to babysitters, nannies, or other home caretakers. Among other things, such persons would not have engaged in a joint effort to conceive a child in a committed romantic relationship, would not have their last name attached to the child on the birth certificate, and would not be able to hold themselves out as the child’s mother without strenuous objection from the biological mother and her relatives."

The court found that overwhelming record evidence supported Charisma’s claim to be a parent in this case, and that Kristina’s objection to various aspects of the testimonial and documentary evidence did not affect that decision, giving the weight of the uncontradicted evidence presented by Charisma. It also noted that Kristina’s unilateral decision to move out with the child had prevented Charisma from establishing a longer duration of actual parenting of the child. "Accordingly," wrote Justice Simons, "this is not a case where the short duration of parenting reflects negatively on an alleged parent’s commitment to establishing a parental relationship. The relatively short period that Charisma parented Amalia is not alone a basis to rebut the parentage presumption."

In holding Kristina’s constitutional equal protection claim to be without merit, the court asserted that Kristina "has not shown that a similarly situated biological mother opposing a petition to establish presumed parentage would be treated differently under the law if the alleged parent, lacking a biological connection to the child, were a man instead of a woman. In other words, Kristina has not shown that a case involving a man in Charisma’s circumstances would be decided any differently under the law."

The due process argument presented a more serious issue, since the U.S. Supreme Court has protected the right of biological parents, if not proven unfit, to make decisions about the contact of their children with third parties, the key recent precedent being Troxel v. Granville, 530 U.S. 57 (2000), in which the Supreme Court invalidated a state law that mandated allowing grandparents to have visitation rights over the objection of biological parents. But the California appeal court found Troxel distinguishable in this case, because Charisma is deemed a parent, not a legal stranger, under California law.

"Troxel is inapposite," wrote Simons. "There, the court considered a nonparental visitation statute; at issue here is a statute determining the identity of Amalia’s parents. Unlike the order in Troxel, the order declaring Charisma a parent of Amalia by definition did not extend rights to a non-parent. . . In this case, Kristina and Charisma decided to have a child together, they jointly pursued the goal of Kristina becoming pregnant, and Charisma was present at the birth and cut the umbilical cord. Kristina’s parentage claim arises from the fact that she gave birth to Amalia. And, at the time of the birth, Charisma had an inchoate parentage claim because she ‘actively consented to, and participated in, the artificial insemination of her partner with the understanding that the resulting child would be raised by [Kristina] and her as co-parents.’ Charisma’s parentage claim was not legally complete until she accepted Amalia into her home, but it arose at the same time as Kristina’s claim. Because Charisma ultimately satisfied the legal standards for presumed parent status and her showing was not rebutted, declaring her a parent is not giving parental rights to an unrelated individual; it is recognizing the parental role that existed from birth."

The court pointed out that Kristina’s "true complaint is that the state has seen fit to declare a person without a biological connection to Amalia a parent." But the court found that Kristina had presented "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. It may be that there are different circumstances in which such an order would be unconstitutional, but any such determination would require a careful analysis of the specific facts and interests involved in the case." The court pointed out that a careful balancing of interests would be needed in such a case, and that the child’s interest in maintaining ties with the co-parent would also have to be weighed in the balance, not just Kristina’s interest as a biological mother.

The court rejected an argument that the recommendations of the evaluators appointed by the court were biased because it was shown that at one time they had been donors to the National Center for Lesbian Rights, which had provided some assistance to Charisma in this case, and also rejected a claim that the trial judge was biased against Kristina. Finally, the court rejected the trial judge’s conclusion that the costs of reunification could be born by Charisma without any assistance from Kristina, noting that the statute authorizes such expenses when it is in the interest of the child to be reunified with the parent and travel expenses as a result of a custodial parental move would make it difficult for the non-custodial parent to participation in those activities.

Given Liberty Counsel’s participation in the case and the raising of constitutional questions of first impression, it is likely that an appeal will be sought.