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Mother’s Partner Is Children’s 2nd Mother

Posted By Azemika   |   Comments (0)
Child Custody & Visitation,



A California Court of Appeals has ruled that Trial Court did not make a mistake in ruling that Mother’s former same-sex partner is presumed the parent of Mother’s adopted children where evidence showed that the partner received them into her family home and held them out to family and friends as her natural children. In the case of S.Y. v. S.B., Mother’s former same-sex partner (Partner) petitioned Trial Court for an order naming her as a presumed parent of Mother’s two adopted children (Child-1 and Child-2) under California Family Code Section 7611(d) [presumed parent receives child into his or her home and holds child out as his or her natural child].

At trial, evidence showed that Mother and Partner had been in committed same-sex relationship for 13 out of the 16 years between 1993 and 2009. Partner, a graduate of the Air Force Academy, was a Colonel in the U.S. Air Force Reserves and worked as a senior planner in City of Sacramento Community Development Department; Mother was a kindergarten teacher. Beginning in 1994, Mother, with Partner’s support, began efforts to conceive a child through artificial insemination. When that did not work, Mother contemplated in vitro fertilization, for which Partner ultimately agreed to pay. By that time, however, Mother had decided to pursue adoption. When Mother’s adoptive son (Child-1) was due to be born, Partner took time off to travel with Mother to Redding, waited in the waiting room during his birth, and brought Mother and Child-1 home after his release from the hospital. Although Partner kept a separate residence, she stayed at Mother’s house most nights and on weekends and helped take care of Child-1. Partner also paid for updated home study in connection with Child-1’s adoption and bought formula, diapers, and baby food. Not long after Child-1’s birth, Mother, Partner, and Child-1 went to Hawaii; later they went to Texas to visit Partner’s parents. In 2003, Partner and Mother talked about making Partner Child-1’s guardian, but Mother later cancelled their appointment with an attorney.

In June of 2003, they broke up. During the next two and one-half years, Partner continued to see Child-1 at Mother’s house evenings and weekends, helped take care of him, and went on outings and vacations with him and Mother. When Partner received promotion in Air Force reserves, Mother and Child-1 participated in epaulet-pinning ceremony in front of 65 of Partner’s friends, family, and colleagues.

In 2004, Mother decided to adopt another child. Partner sent word that she was not expecting to help parent that child. Later, however, when the adoption of Mother’s second child (Child-2) bogged down, Partner flew to Minnesota at Mother’s request to help with Child-1’s care. Moreover, Mother gave Child-2 a middle name that contained Partner’s middle name. After that, Partner continued as before, spending evenings and weekends with Child-1 (and now Child-2), helping with their care, and going on outings and vacations.

In November of 2005, Partner and Mother resumed their relationship. Partner set up college funds for both Children, displayed their photos in her office, brought them to family and work events, went to all of Child-1’s baseball practices and games, and attended all school functions. When Partner’s parents took their family on a cruise to celebrate their 50th wedding anniversary, Mother and Children were included. Partner’s mother testified that Partner cared for Children like any other parent would, including cleaning up after Child-1 had vomited.

In November of 2007, after Partner and Mother decided to buy a house together, Partner sold her house and moved in with Mother and Children. She continued to live there after the house deal fell through, but moved into her own apartment after eight months. Partner also spent considerable sums on family expenses, but took no action to adopt or formalize her relationship with Children, fearing to jeopardize her 30 year military career by running afoul of the since-repealed "Don’t Ask Don’t Tell" statute.

Partner and Mother ended their relationship in June of 2009, after which Mother told Partner she was cutting off all contact between Partner and Children. Partner then filed a petition to be declared Children’s presumed parent. While the matter was pending, Child-1 used friend’s cell phone to call Partner, saying he loved her, missed her, and wanted to see her.

When trial concluded, Trial Court found that although Partner kept a separate home, she and Mother "shared a blended home" into which Partner had received Children, embraced the responsibilities and rights of parenthood, demonstrated full commitment to Children, and spent most nights and weekends. Trial Court also found that Partner held Children out as her natural children to friends and family, that Mother had failed to rebut the presumption of parenthood, and that denying Partner’s petition would leave Children in the unfavorable position of having only one parent. Declining to address Mother’s constitutional claims, Trial Court granted Partner’s petition and declared Partner to be Children’s presumed parent under California Family Code Section 7611(d).

Mother appealed, but California Court of Appeals has now affirmed Trial Court’s decision. The Court of Appeals has ruled that (1) Partner need not have received Children into her separate residence because sufficient evidence showed that she received them into Mother’s home (which served as parties’ joint home), where she spent most of her time, cared for Children, and gave them financial support; (2) there was ample evidence that Partner held Children out as her natural children; (3) Trial Court did not abuse its discretion by finding that Mother failed to rebut the parenthood presumption under California Family Code Section 7611(d) because Partner demonstrated full commitment to parenting, there are no competing claims to her being Children’s second parent, and public policy favors Children’s having two parents; and (4) declaring Partner to be Children’s second parent will not impermissibly interfere with Mother’s constitutional right to make decisions concerning Children’s care, custody, and control.


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