California’s policy of providing a child with two parents, regardless of gender, was upheld with a decision filed 8/2/12 by the Court of Appeal, Fourth Appellate District.

San Diego residents Laura Mustari and Maureen Gray lived together as same-sex partners from 1998 through 2003. Though the two were never registered domestic partners, they made the joint decision to adopt a child, who was born in November 2000. Maureen formally adopted the child in 2001, and according to Laura, the plan was always for the Maureen and Laura to become registered partners so that Laura could become an adoptive parent, too.

This never happened, and it broke up the relationship, according to Laura. By then, the child was nearly three and was calling Laura “mommy.” Laura said she did not file a Petition for Parentage in 2003 having been advised against such action as it (at the time) had no legal precedent. Moreover, Maureen was facilitating Laura’s visitation with the child. However, in 2009, Maureen informed Laura that she intended to move away to Europe with the child, and this compelled Laura to file a Petition for Parentage.

The trial court found Laura satisfied the parentage presumption set forth in paragraph “d” of Family Code §7611 (which defines under what conditions a man may be presumed to be a natural father), namely, that she had “received the child into her home and held him out to the world as her natural child.” Judgment was entered on 8/18/11; Maureen promptly appealed.

But the legal climate had changed since 2003: In 2005, the California Supreme Court heard the landmark “Elisa B” case in which the Court ruled that when a same-sex couple has a child through assisted reproduction, both partners are legal parents, regardless of their gender, sexual orientation, or marital status. This case figured prominently in the Appellate Court’s decision, particularly as it applied to §7611(d): while the language of the statute refers to a “man” and being a natural “father”, the Court found in Elisa B that the statute could also cover a woman and maternity.

Maureen’s argument against Laura being a second parent to the child was Maureen’s having adopted the child by herself. But the Appellate Court found that, while this adoption severed the rights of the birth parents, it did not limit the child to having just one parent in the future. Ultimately, the Appellate Court found that, in the absence of competing claims to parentage of the child, the state’s policy toward providing a child with two parents meant it would not be appropriate to rebut Laura’s claim, pursuant to §7611(d), that she was the child’s parent.

The Appellate Court also rejected Maureen’s argument that Laura’s parentage claims were invalid given that she never pursued formal stepparent adoption proceedings; the Appellate Court affirmed the trial court’s authority to recognize parental status under the Uniform Parentage Act even in the absence of such adoption proceedings.

And thus, with this decision, along with Elisa B. and several others affirming the right of a child to two parents, same-sex or otherwise, perhaps a gender-neutral redrafting of the §7610 et. seq. chapter of the Family Code is in the cards for the near future.

The full opinion can be found here.

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