Nancy S. v. Michele G.

• Decision Date: 20 March 1991
• Docket Number: No. A045463,A045463
• Court: California Court of Appeals Court of Appeals
• Parties: NANCY S., Plaintiff and Respondent, v. MICHELE G., Defendant and Appellant.

Page 212

279 Cal.Rptr. 212

228 Cal.App.3d 831

NANCY S., Plaintiff and Respondent, v. MICHELE G., Defendant and Appellant.

No. A045463.

Court of Appeal, First District, Division 1, California.

March 20, 1991.

Paula Ettelbrick, Lambda Legal Defense & Educ. Fund, Inc., New York City, Amy Oppenheimer, Levy & Oppenheimer, Oakland, Roberta Achtenberg, Lesbian Rights Project and National Center For Lesbian Rights, Rochelle D. Alpert, Maia Ettinger, Tom E. Wilson, Shannan L. Wilber, Morrison & Foerster, San Francisco, for defendant and appellant.

John R. Reese, Glenn D. Schwarzbach, Dana L. Curtis, McCutchen, Doyle, Brown & Enersen, San Jose, for amici curiae California Chapter of the Ass'n of Family and Conciliation Courts.

Susan R. Keith, New York City, K. Leslie Avery, Los Angeles, for amici curiae Gay & Lesbian Parents Coalition Intern., San Francisco Bay Area Lesbian/Gay Parenting Group, Carla A, Danielle H and Laurie F-H, and Ted W.

Matthew A. Coles, Edward M. Chen, Margaret C. Crosby, Alan L. Schlosser, San Francisco, for amici curiae American Civil Liberties Union Foundation of Northern California, Inc.

Nan Hunter, William Rubenstein, New York City, for amici curiae American Civil Liberties Union Foundation, Inc.

Carol Amyx, Berkeley, for plaintiff and respondent.

Sidney Hollar, San Francisco, for amici curiae Legal Services for Children.

Alice Bussiere, Anthony Arjo, Law Student Intern, San Francisco, for amici curiae National Center for Youth Law.

Carole Shauffer, San Francisco, for amici curiae Youth Law Center.

STEIN, Associate Justice.

Appellant, Michele G., appeals from a judgment under the Uniform Parentage Act (Civ.Code, § 7000 et seq.) determining that respondent, Nancy S., is the only parent of the two minor children that respondent conceived by artificial insemination during her relationship with appellant. The judgment further provided that respondent, as the only legal parent of the two minor children, is entitled to sole legal and physical custody and that any further contact between appellant and the children shall only be by respondent's consent.

The issue presented is whether the court erred in determining, as a matter of law, that appellant has no right to an award of custody or visitation under the Uniform Parentage Act.

FACTS

In August of 1969, appellant and respondent began living together, and in November of that year they had a private "marriage" ceremony. Eventually they decided to have children by artificially inseminating respondent. In June of 1980, respondent gave birth to a daughter, K. Appellant was listed on the birth certificate as the father, and K. was given appellant's family name. On June 13, 1984, respondent gave birth to a son, S. Again appellant was listed as the father on the birth certificate, and S. was given appellant's family name. Both children refer to appellant and respondent as "Mom." Although the parties considered arranging for appellant to adopt the children, they never initiated formal adoption proceedings.

In January of 1985 appellant and respondent separated. They agreed that K. would live with appellant and that S. would live with respondent. They arranged visitation so that appellant would have K. five days a week and respondent would have S. five days a week, but the children would be together, either at appellant's or respondent's home for four days a week. After approximately three years, respondent wanted to change the custody arrangement so that each had custody of both children 50 percent of the time. Appellant opposed any change, and attempts to mediate the dispute failed.

Respondent then commenced this Uniform Parentage Act proceeding. Her complaint sought a declaration that appellant is not a parent of either child, that respondent is entitled to sole legal and physical custody and that appellant is entitled to visitation only with respondent's consent. The court issued a temporary restraining order and granted temporary custody to respondent. Appellant answered the complaint and admitted that respondent is the biological mother of the children. She denied, however, the allegations that she was not also a parent of the children. She sought an order for custody and visitation in accordance with their original custody agreement.

A hearing was held on respondent's order to show cause and appellant's cross-motion for custody and visitation. The parties fully briefed and argued the issue whether appellant could qualify as a parent and seek custody and visitation under the Uniform Parentage Act. Appellant admitted that she was not the biological mother and had not adopted the children. Nonetheless, she argued that she had attained the status of a de facto parent, or that respondent should be estopped to deny appellant's status as a parent. The court determined that appellant was not a parent under the Uniform Parentage Act, and that even if she could prove that she had the status of a de facto parent, that it could not award her custody over the objections of respondent, the natural mother, who did qualify as a parent under the act. The court therefore awarded sole physical and legal custody to respondent. ¹

ANALYSIS

Civil Code section 4600, subdivision (c) provides that, in any proceeding where there is at issue the custody of a minor child, "Before the court makes any order awarding custody to a person ... other than a parent, without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interests of the child." Appellant acknowledges that, regardless of the statutory basis of the underlying proceeding, i.e., whether it was brought under the Uniform Parentage Act, or as a guardianship, dependency, or dissolution proceeding, she is entitled to seek custody and visitation over the objections of the children's natural mother, based on the "best interests" of the children, only if she has alleged facts upon which the court could determine that she is a parent of the children. ²

The Uniform Parentage Act defines a parent as one who is the natural or adoptive parent of a child. (Civ.Code, § 7001.) The existence of the relationship of parent and child may be proved between a child and its natural mother by proof of her having given birth to the child (Civ.Code, § 7003, subd. (1)), between a child and an adoptive parent by proof of adoption (Civ.Code, § 7003, subd. (3)), and between a natural father and a child as provided in the act (Civ.Code, § 7003, subd. (2)). ³

It is undisputed that appellant is not the natural mother of K. and S., and that she has not adopted either child. She does not contend that she and respondent had a legally recognized marriage when the children were born. Based on these undisputed facts, the court correctly determined that appellant could not establish the existence of a parent-child relationship under the Uniform Parentage Act.

Appellant nonetheless asserts that the Uniform Parentage Act does not provide the exclusive definition of a parent. She asserts that her allegations of a long-term relationship in which she has become a "psychological parent" of the children would, if proved, ⁴ entitle her to seek custody and visitation as if the dispute were between two legally recognized parents. She advances several legal theories to support her assertion that she has acquired "parental rights," i.e, the right to seek custody and visitation on an equal footing with the children's natural mother and over their natural mother's objections. First, she argues that she is either a "de facto" parent, or that she stands "in loco parentis."

A. De Facto Parenthood

A de facto parent is "that person who, on a day-to-day basis, assumes the role of parent, seeking to fulfill both the child's physical needs and his psychological need for affection and care." (In re B.G. (1974) 11 Cal.3d 679, 692, fn. 18, 114 Cal.Rptr. 444, 523 P.2d 244.) Appellant alleged that she helped facilitate the conception and birth of both children and immediately after their birth assumed all the responsibilities of a parent. K. lived with appellant until the underlying dispute arose, and S. also lived with appellant until appellant and respondent separated, and thereafter S. visited with appellant on a regular basis. These facts may well entitle appellant to the status of a "de facto" parent. It does not, however, follow that as a "de facto" parent appellant has the same rights as a parent to seek custody and visitation over the objection of the children's natural mother. In In re B.G., supra, 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244, the court acknowledged that the concept of "de facto" parenthood could apply to long-term foster parents for the purpose of permitting them to intervene in a dependency proceeding. The court went on to hold that, nonetheless, custody could not be awarded to the foster parents over the objections of the natural mother without a finding that parental custody would be detrimental to the children. (Id. at pp. 692-695, 114 Cal.Rptr. 444, 523 P.2d 244.) The court also specifically stated that, "[w]e do not hold that a de facto parent is a 'parent' or 'guardian' as those terms are used in the Juvenile Court Law." (Id. at p. 693, fn. 21, 114 Cal.Rptr. 444, 523 P.2d 244.)

No cases support appellant's contention that if she could prove her status as a de facto parent, she would be entitled to seek custody of respondent's children according to the same standards applied in a dispute between two parents. To the contrary, the cases establish that nonparents, even if they qualify as "de facto parents," may be recognized in guardianship or dependency proceedings and may even obtain custody over children with whom they have established a de facto parent-child relationship, but that custody can be awarded to a de facto parent only if it is established by clear and convincing evidence that...