California Court of Appeal Affirms Parental Rights for Non-Adoptive Same-Sex Co-Parent

The California 3rd District Court of Appeal has affirmed a ruling by Sacramento Superior Court Judge Helena Gweon that a woman who had not attempted to adopt her former same-sex partner’s adoptive children, due to the woman’s fear of jeopardizing her military career under the “Don’t Ask Don’t Tell” policy, was the second parent of those children even though the women did not share the same residence.  S.Y. v. S.B., 2011 WL 6129594 (Dec. 9, 2011).  Writing for the court, Justice Cole Blease found that Judge Gweon had correctly concluded based on the evidence in the record that S.Y. was a parent of the children under California’s construction of the Uniform Parentage Act.

S.Y. and S.B. met in 1993 and were in a committed relationship that ultimately ended in 2009.  They maintained separate residences, but S.B. spent several nights a week and most weekend’s at S.Y.’s home.  S.Y. worked as a senior planner  in the Community Development Department for the City of Sacramento and served as a Colonel in the U.S. Air Force Reserves, having been a member of the second class of women to graduate from the Air Force Academy having served in the Air Force for almost 30 years.  S.B. worked as a kindergarten teacher.  S.B. initiated the idea of having children.  While this had not been a goal of S.Y., she said she would support S.B. in this and would be a co-parent.  At first S.B. wanted to have children through donor insemination or in vitro, but ultimately decided to adopt.  She adopted G.B. in 1999, shortly after his birth, and S.Y. participated actively in a parental role from the time G.B. was born.  The parties broke up in June 2003, but got together again two and a half years later.  During the interim period S.Y. attempted to maintain her contact with G.B. and visited regularly except when S.B. prevented it.  During the break-up, S.B. decided to adopt another child, and adopted M.B. in 2004.  S.Y. continued to visit the home frequently and also co-parented M.B. to the extent possible.  After the parties reconciled, S.Y. resumed the co-parental role.  (She testified that her relationship to the children was the main reason she resumed her relationship with S.B.)  However, in July 2009, S.Y. decided to end the relationship with S.B., who advised S.Y. that she could no longer have contact with the children.  S.Y. immediately consulted counsel and filed suit shortly thereafter.

According to Justice Blease’s opinion, “S.Y. believed her position in the military precluded her from adopting the children or formalizing her relationship with S.B.  She also believed that under the military’s “Don’t Ask, Don’t Tell” policy (10 U.S.C. sec. 654), doing any of those things would have jeopardized her 30 year career in the military and could have resulted in her being court marshaled and going to prison.  In addition, S.Y. testified that S.B. would never have allowed her to adopt the children, and until recently, she believed the law precluded her from adopting the children and would not otherwise recognizer her parental rights.”  Evidently, it was not until she consulted counsel that she learned that California courts have recognized parental rights of same-sex co-parents in the absence of formal adoption or same-sex registered domestic partners or marriages.

The issue for the court, under California precedents, was whether S.Y. had “received the children into her home” and “openly held G.B. and M.B. out as her natural children,” thus raising the presumption under the UPA that she was a parent to the children.  The court found that Judge Gweon had not abused her discretion in ruling based on the trial record that these requirements had been met and that there was no basis in the record to rebut the presumption of parental status.  The court concluded that the separate residences maintained by the two women did not defeat the requirement that S.Y. “received the children into her home,” since she spent so much time at S.B.’s house with the children that it qualified as her “home” for this purpose.  Also, given the fears about her military career, the court found that her conduct sufficient met the “openly held out” requirement in light of the number of people who were aware of the situation and testified to S.Y.’s parental relationship with the children.  In common with prior cases, wrote Justice Blease, “here, S.Y. encouraged S.B. to adopt a child with the understanding she would co-parent the child; S.Y. voluntarily accepted the rights and obligations of parenthood since the children were born; there are no competing claims to her being the children’s second parent; and public policy favors children having two parents.  The trial court acted well within its discretion in concluding S.B. failed to rebut the parentage presumption.”

The court also rejected S.B.’s due process argument based on Troxel v. Granville, 530 U.S. 57 (2000), observing that California courts have rejected the contention that Troxel applies to a situation in which a court determines that a person is a parent under the UPA.  (Troxel was a case where the Supreme Court reversed a state court ruling requiring a fit parent to allowed her deceased spouse’s parents continue contact with the children over her objections.)  A person determined to be a parent pursuant to the UPA is not a “third party” for this purpose.

Finally, the court rejected S.B.’s argument that “a woman’s right to assert visitation rights – much less parental rights – to her former partner’s children, is not widely protected by society even today.”  The court reproduced a string-cite from S.Y.’s brief from 19 different jurisdictions in which appellate courts recognized such rights for former same-sex partners who were co-parenting children. 

In addition to affirming Judge Gweon’s declaration that S.Y. is a parent of the two children, the court awarded costs on appeal to S.Y.  S.Y. is represented by Wald & Thorndal and the National Center for Lesbian Rights.