California Court of Appeals Affirms Parental Rights of Former Same-Sex Couple

September 13, 2012
By Thomas M. Huguenor on September 13, 2012 1:51 PM |

505709_75076992.jpgA woman appealed a trial court's ruling, which held that her former partner is the child's second parent based on the Uniform Parentage Act (UPA). In her appeal in L.M. v. M.G., the woman argued that the court could not declare anyone to be the child's second parent because the child had a single-parent adoption decree. The Fourth District Court of Appeals was not persuaded and affirmed the trial court's ruling.

From 1998 to 2003, M.G. and L.M. cohabited as same-sex partners, although they never registered a domestic partnership with the state. M.G. sought to adopt a child from a woman in Tijuana, Mexico in 2000. She arranged for the woman to live in California until she gave birth, and the child was born in November 2000. M.G. officially adopted the child in October 2001, and she and L.M. shared childcare duties. L.M. told the court that, at the time of the adoption, they planned on registering as domestic partners, and L.M. planned on adopting the child as a second parent.

California allows a partner in a same-sex couple to adopt the other partner's child. The process generally matches the process of adoption of a child by a stepparent in a marriage. The California Supreme Court recognized this process, commonly known as second parent adoption, in Sharon S. v. Superior Court of San Diego County, 73 P.3d 554 (Cal. 2003).

M.G. and L.M.'s relationship ended in 2003. As a result, the two did not complete the adoption process for L.M. After their separation, the child primarily lived with M.G., but he regularly stayed overnight at L.M.'s house several times a month. L.M. said she did not commence court proceedings to establish parentage at the time on the advice of several attorneys, who noted the lack of legal precedent before the Sharon S. case and M.G.'s willingness to share custody.

L.M. filed a petition to establish parentage in 2010, shortly before M.G. planned to move to Europe with the child — who was then nine years old — for eighteen months. The trial court found that L.M. met the presumptions of parentage, applying a statute that actually describes presumptions of paternity. The court held that the statute can also apply to same-sex couples, citing Elisa B. v. Superior Court of El Dorado County, 117 P.3d 660 (Cal. 2005), and it granted joint custody to L.M. and M.G.

M.G. appealed, citing several statutory rebuttals to the presumption of parentage applied by the trial court. She argued that the adoption decree from 2001 establishes someone else’s paternity of the child, which would preclude L.M. from adoption. The appeals court rejected this argument, finding no reason to conclude that anyone other than M.G. had parental rights after the 2001 adoption. The court did not need to address any of M.G.’s other arguments because they all depended on someone else still having parental rights. The appeals court upheld the trial court’s ruling

Thomas Huguenor is a divorce and child custody lawyer certified by the State of California. For more than 35 years, he has represented people in San Diego finding their way through the California divorce process. For a free and confidential consultation, contact him today online or at (858) 458-9500.

More Blog Posts:

California Bill Would Expand Criteria for Legal Designation as Parent of a Child, San Diego Divorce Attorney Blog, August 9, 2012

New California Laws for 2012 Include "Gay Divorce Bill," San Diego Divorce Attorney Blog, January 5, 2012

Supreme Court Denies Review of Louisiana Adoption Decision for Same-Sex Couple, San Diego Divorce Attorney Blog, October 13, 2011

Photo credit: 'i jnust dont wanna' by combine69 on stock.xchng.