Recent Developments in Family Law
COURT AFFIRMS DETERMINATION THAT MOTHER’S FORMER SAME-SEX PARTNER IS A SECOND PARENT TO CHILD ADOPTED BY MOTHER DURING THEIR RELATIONSHIP. L.M. v. M.G. (2012) 208 Cal.App.4th 133.
M.G. and L.M., both women, lived together as same-sex partners from 1998 to the end of 2003. They were not registered domestic partners. In 2000, M.G. arranged to adopt a child from a birth mother who wanted to place her child for adoption when he was born. Upon the child’s birth in November 2000 the child lived in the household with M.G. and L.M. Both women participated in caring for the child in their household. M.G. formally adopted the child in October 2001. According to L.M., at the time of the adoption, the plan was for the couple to register as domestic partners, followed by L.M.’s eventual adoption of the child in a stepparent adoption.
M.G. and L.M.’s relationship ended in 2003 when the child was three years old. According to L.M., a part of the reason the relationship ended was M.G. would not agree to enter into a domestic partnership with L.M. so that L.M. could participate in a stepparent adoption of the child. After L.M. and M.G. ended their relationship, the child resided primarily with M.G. but regularly spent the night at L.M.’s house. The child regularly traveled on vacations with L.M., and L.M. cared for the child when M.G. was out of town. The child calls L.M. “mom” or “mommy,” and L.M. refers to the child as her son. L.M.’s friends and co-workers and the parents at the child’s school understand the child to be L.M.’s son.
In October 2009, M.G. informed L.M. she planned to relocate to Europe with the child for 18 months beginning in July 2010 because M.G.’s registered domestic partner would be temporarily assigned there for her job. Shortly before the scheduled trip, L.M. filed a Petition to Establish a Parental Relationship with the child pursuant to the Uniform Parentage Act (UPA) (Family Code § 7600, et seq.).
The trial court adjudged L.M. to be a parent of the child, finding that L.M. satisfied the requirements of the parentage presumption set forth in Family Code § 7611(d) because she received the child into her home and held him out to the world as her natural child. M.G. appealed.
APPELLATE COURT DECISION
On appeal, M.G. did not challenge the trial court’s finding that a presumption of parentage in favor of L.M. arose because L.M. received the child into her home and openly held him out as her natural child. Instead, M.G. argued a presumption of parentage in favor of a second parent is necessarily rebutted as a matter of law whenever the child who is the subject of a parentage petition was adopted by his legal parent through a single parent adoption decree. M.G. argued that a child who is adopted in a single parent adoption may not be adjudged to have a second parent under the UPA because the adoption decree constitutes a judicial determination that “this is not a two slot parent family. It is a one slot parent family. There is no extra (or second) parent slot for L.M. to occupy.”
The Court of Appeal disagreed. It found the adoption decree adjudged M.G. to be the child’s parent and was premised on the statutorily required finding that the interest of the child would be promoted by the adoption. The adoption decree also operated to extinguish the parental rights of the child’s birth parents. It did not establish that, regardless of future developments, the child should be limited to only one parent. It is well established under the law that a child raised in a same-sex relationship may have two mothers (or two fathers). The adoption decree did not preclude a determination under the UPA that L.M. is the child’s second mother.
The parental rights of individuals who receive a child into his or her home and openly hold the child out as his or her natural child are increasingly being recognized by the courts. Legal parents who try to find loopholes in the laws that recognize these parental rights are rarely successful. Courts are remaining focused on the interests of children in making determinations regarding the parental status of a child’s caretaker.