Presumptive Parent Status Granted to Mom Who Received Child in Her Home and Held Him Out As Her Son

January 29, 2013

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Parents often struggle with child custody matters, even though both parties typically want what is best for the child. Complications inevitably arise. In this case, two women in a same-sex relationship, who never registered as domestic partners in any state, adopted a child from Russia, and then later separated. If you have questions about a child custody matter, you are encouraged to contact an experienced family law attorney in San Diego to assist you in protecting your rights.

In 2007, Beth C. and Marcia B. began looking to adopt a boy from Russia. Marcia B. was the only one registered as the adoptive parent because (1) Russia did not permit adoption by same sex couples, and (2) Beth was concerned about a DUI arrest on her record that could affect their chances of adopting.

After Marcia B. officially adopted Egor, whose name was changed to Ian B., Beth C. initiated the process to adopt him. The three moved from Illinois to New York, delaying the adoption process, which was never finalized. While the couple were in a relationship, Beth C. was a "stay at home" mom, caring for Ian B. and introducing him as her son. She took him to doctor appointments and Ian B. called her "mommy." Marcia B. worked full time.

In August 2008, Beth C. and Marcia B. ended their relationship. They were living in Indiana at the time and continued living together until Ian B. finished kindergarten the following year. At the end of the school year, the couple agreed that Ian B. should move to California with Beth C. to live with her parents. Over the next 18 months, Marcia B. visited with Ian B. for several weeks each year, while Beth C. enrolled him in school in California, was listed as his mother in his medical records and introduced Ian B. as her son.

In February 2011, Marcia B. took Ian B. from Beth C.'s residence and did not bring him back. Marcia B. obtained a custody order restricting Beth C.'s visitation rights, who then filed a petition to establish her legal parentage. Both parents agreed to a bench trial to resolve whether Beth C. was Ian B.'s legal parent under the Family Code, section 7611, subdivision (d).

Although the language of section 7611 describes circumstances in which "a man is presumed to be the father of a child," the court noted that the statute can be applied in a gender-neutral manner, and covers situations where the question is raised as to the mother's status. The court is required to look at whether the mother, in this case, received the child into her home and publicly and openly acknowledged maternity. With the best interests of the child in mind, the presumption of parenthood can only be rebutted by clear and convincing evidence.

The trial court found that Beth C. was the presumptive parent of Ian B. The California court of appeals affirmed the decision and noted that the evidence supported the trial court's conclusion and that Marcia B.'s policy arguments were unpersuasive. The court denied Marcia B.'s contention, without citing legal authority, that Ian B. was not "received" into Beth's home because it was her mother's home and not hers.

Marcia B. next raised three policy arguments opposing the trial court's determination: (1) it is counter to public policy because it permits Beth C. to avoid forming a legal relationship with Ian B., thereby encouraging people to avoid taking responsibility for their child; (2) section 7611 (d) is so expansive that it allows any person who spends time with a child to claim legal parentage; and (3) application of section 7611 (d) allows individual to circumvent formal adoption proceedings.

The court failed to find any merit in the three arguments, concluding that the lower court did not err in granting Beth C. presumptive parent status. While this case is unpublished and thus does not have value as precedent, it is indicative of how courts view these matters.

If you are a parent with questions about child custody and visitation matters, you are encouraged to contact Roy M. Doppelt & Associates. Mr. Doppelt is a knowledgeable Scripps Ranch family law attorney who has more than 20 years of experience representing parents in Southern California. Roy M. Doppelt & Associates serves clients in Linda Vista, Encinitas, Scripps Ranch, San Diego, and throughout Southern California. For a free consultation with a dedicated and experienced family lawyer, contact Roy M. Doppelt & Associates through the law firm's website or give us a call toll-free at (800) ROY IS IT (769-4748).

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