Maria B. v. Superior Court

• Decision Date: 20 May 2004
• Docket Number: No. C042077.,C042077.
• Citation: 13 Cal.Rptr.3d 494,118 Cal.App.4th 966
• Parties: Elisa MARIA B., Petitioner, v. The SUPERIOR COURT of El Dorado County, Respondent; Emily B. et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

13 Cal.Rptr.3d 494

118 Cal.App.4th 966

Elisa MARIA B., Petitioner, v. The SUPERIOR COURT of El Dorado County, Respondent;

Emily B. et al., Real Parties in Interest.

No. C042077.

Court of Appeal, Third District.

May 20, 2004.

Review Granted September 1, 2004.

Hanke & Williams and Shelly L. Hanke, Garden Grove, for Petitioner.

No appearance for Respondent.

Bill Lockyer, Attorney General, James M. Humes, Senior Assistant Attorney General, Frank S. Furtek and Mary Dahlberg, Deputy Attorneys General, for Real Party in Interest El Dorado County.

Valerie Ackerman, San Francisco, for National Center for Youth Law; Alice Bussiere for Youth Law Center; and Shannan Wilber for Legal Services for Children as Amici Curiae on behalf of Real Party in Interest Emily B.

SCOTLAND, P.J.

This case poses the question whether a person in a same-sex relationship, who encourages her partner to give birth to a child via artificial insemination and who then holds out the child as her own, can be required to pay child support after she and her partner split up.

While together as partners in a same-sex relationship, Elisa B. and Emily B. each gave birth to a child conceived by artificial insemination. Elisa delivered a boy, and Emily had twins, a girl and a boy. They selected the children's names together, hyphenated the women's last names as the children's surname, and considered them to be "children of both [women]." In Emily's words, they agreed that she "would be the stay-at-home mother" and that Elisa would be "the primary breadwinner for the family." Providing financial support and medical insurance coverage for them, Elisa claimed all three children as dependants for income tax purposes. In time, the women's relationship soured and they split up. Elisa agreed to provide financial support for Emily's twins "when [she] could" and made monthly payments of $1,000. Almost a year and a half later, Elisa stopped sending money and stopped seeing the twins because she did not want to have to deal with Emily due to the tension between them.

Emily was now receiving public assistance for the twins, and the County of El Dorado (the County) filed an action to establish that Elisa is a "parent" of the twins and to impose a child support obligation based upon Elisa's alleged income of over $10,000 a month. Elisa opposed the action on the grounds inter alia that (1) she is "not the other parent" of the twins, (2) "a lesbian partner who is neither the biological nor adoptive parent is not entitled to custody of children conceived during a same-sex bilateral relationship," and (3) "[s]ince the Court cannot award custody or visitation of [the twins] to [her], the Court cannot order [her] to pay child support for those same children."

The trial court found that Elisa "is accountable as a de facto legal parent for the support of [the twins]" and also that because she "consented to the creation of these children and encouraged their creation," she is precluded by principles of promissory or equitable estoppel from disclaiming financial responsibility for them.

Elisa filed a petition for writ of mandate in this court, seeking to compel the trial court to vacate its support order and to dismiss the action. She contends the trial court has no authority to order a lesbian partner in a same-sex relationship to pay child support when the partner is not the biological or adoptive mother of the children. According to Elisa, a parental obligation of support may not be imposed on her because she is not a parent under the Uniform Parentage Act (the UPA) (Fam.Code, § 7600 et seq.; further section references are to the Family Code unless otherwise specified), and the court erred in concluding she is estopped from disclaiming responsibility for the financial support of the children. Moreover, she argues, imposing a support obligation on her violates principles of equal protection of law because it places a greater burden on her than on a similarly-situated unmarried man whose partner conceives a child through artificial insemination.

We issued an alternative writ and stayed the trial court's order. We now conclude that a peremptory writ of mandate should issue directing the trial court to vacate its order and to enter judgment in favor of Elisa.

As we will explain, we conclude that Elisa is not a parent of the twins within the meaning of the UPA and, thus, the UPA cannot be used to impose a child support obligation on her. And she is not entitled to the parental rights and obligations provided by recent registered domestic partners legislation because it does not become effective until January 1, 2005, and in any event, she and Emily were not registered domestic partners. Furthermore, Elisa is not estopped from disclaiming financial responsibility for the twins under the circumstances of this case. Accordingly, we shall reverse the judgment.

BACKGROUND

Elisa and Emily moved in together in August 1993 and maintained an exclusive relationship. They exchanged rings to symbolize their union, and Elisa had the words Emily Por Vida (Emily For Life) tattooed on her arm. The women set up a joint bank account and pooled their resources for household expenses.

Elisa wanted to share her life with Emily and have children. Both women wanted to experience childbirth. They discarded the idea of using a private sperm donor because he potentially would have parental rights to custody and visitation. Thus, they chose a fertility clinic together, and Elisa began the insemination process in 1996. After Elisa became pregnant, Emily began the process using the same sperm donor so their children would be related. Most of the inseminations occurred at the clinic, but on one occasion, Elisa inseminated Emily in their home using the donor's sperm.

Emily and Elisa attended each other's childbirth classes and medical appointments, and were present at the birth of each other's children. Elisa gave birth to a boy in 1997, and Emily gave birth to twins in 1998. The women jointly chose the children's names and gave them a hyphenated surname, which was a combination of their own surnames. They did this so the children would be considered a family and the children of both of the women. The women breast-fed all three children and pumped breast milk for any child to use as necessary. Elisa considers herself and Emily to both be the mothers of all the children.

Prior to the children's births, Emily and Elisa talked with an attorney because they wanted to adopt each other's child. But they did not follow through on the idea.

After the twins were born, Emily did not return to work. As the women had agreed, she stayed at home with a full-time nanny to care for all the children. Elisa, who was the higher wage earner, provided financial support for the family, paid for dependent medical insurance coverage for the three children, and claimed them as dependants for income tax purposes.

Elisa testified she never agreed Emily would be "a stay-at-home mom" forever; rather, the plan was for Emily to return to work in a few years and for the children to go to daycare. According to Elisa, the women did not have any financial discussions about child support until after they separated.

Six years after they began living together, they separated in November 1999. Emily and the twins remained in the house owned by Elisa, who continued to pay the mortgage and agreed to help out Emily financially "when [she] could." After the house was sold in November 2000, Emily and the twins moved to an apartment and Elisa orally agreed to pay Emily $1,000 a month for support.¹ Although Emily thought this support agreement was indefinite, she conceded that they did not discuss how long Elisa would provide financial assistance. However, according to Emily, Elisa did say that she would always provide a home for Emily and the children.

In May 2001, Elisa informed Emily that she was no longer a full-time employee and that she would not be able to assist Emily anymore because all of Elisa's resources were needed to support herself and her son.

In June 2001, the county filed a complaint "regarding parental obligations" against Elisa to "establish [her] parentage" of the twins and to impose a child support obligation for them pursuant to section 17400 because the twins were receiving public assistance.²

The trial court ruled that because Elisa intended to create children with Emily and used reproductive technology to do so, Elisa was accountable for supporting the twins as a de facto legal parent. In the court's view, Elisa should be "held to the same legal duty and responsibility of a man found to be a presumed father" under the UPA. The court also held that a support obligation was appropriate pursuant to principles of promissory or equitable estoppel. Accordingly, it ordered Elisa to pay child support of $907.50 per month for each child, for a monthly total of $1,815.

DISCUSSION

I

Elisa contends she is not a parent of the twins within the meaning of the UPA and, thus, she does not have any of the rights or obligations arising from the parent and child relationship, e.g., she has no legal obligation to pay child support for the twins.

The UPA, which "`provides a comprehensive scheme for judicial determination of paternity,'" (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050, 43 Cal.Rptr.2d 445, 898 P.2d 891), also is utilized in resolving questions of maternity. (§ 7610, subd. (a); In re Karen C. (2002) 101 Cal.App.4th 932, 936-939, 124 Cal.Rptr.2d 677 (hereafter Karen C.).)

As used in the UPA, the term "`[p]arent and child relationship' ... means the legal relationship existing between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. The term includes the mother and child relationship and the father and child relationship." (§ 7601; Johnson v. Calvert (1993) 5 Cal.4th 84, 89, 19 Cal.Rptr.2d 494, 851 P.2d 776 (here...