A.W. v. S.S.

CourtCalifornia Court of Appeals
Decision Date17 December 2021
Docket NumberD078199
PartiesA.W., Plaintiff and Respondent, v. S.S., Defendant and Respondent; G.S., Real Party in Interest and Appellant.

A.W., Plaintiff and Respondent,

S.S., Defendant and Respondent;

G.S., Real Party in Interest and Appellant.


California Court of Appeals, Fourth District, First Division

December 17, 2021


APPEAL from a judgment of the Superior Court of San Diego County No. 19FL006309E, Sharon L. Kalemkiarian, Judge. Affirmed.

Bickford Blado & Botros and Andrew J. Botros for Real Party in Interest and Appellant.

S.S., in pro. per., for Defendant and Respondent.

No appearance by Plaintiff and Respondent.



As social norms have evolved, the traditional family (husband and wife, living with their children) has become less common. Divorce, nonmarital cohabitation, same-sex marriage, and the increasing number of parents raising children alone all contribute to the emergence of alternative families. [1] Reflecting this, Family Code section 7612, subdivision (c)[2] provides that" [i]n an appropriate action, a court may find that more than two persons with a claim to parentage . . . are parents if the court finds that recognizing only two parents would be detrimental to the child."

In this case, S.S. (Mother) conceived a child (Child) with A. W. (Bio-Father) during an extramarital affair. Wife hid the pregnancy from her husband, G.S. (Stepfather), for the first year of Child's life as she then lived mostly with Bio-Father. Nevertheless, their marriage remained intact. When Stepfather learned about Child, he and Mother reconciled. Since then, they have lived together with Child, who is now three years old.

The issue the family court had to grapple with is not fatherhood-both Bio-Father and Stepfather are presumed fathers under section 7611-but parentage: should Child have three parents or two? After conducting a trial, the family court determined that Bio-Father is Child's legal father. It went on to deny Stepfather's request to be named an additional parent after it determined that having only two parents would not be detrimental to Child.

On appeal, Stepfather does not challenge Bio-Father's status as legal father. Rather, he contends the court abused its discretion in not determining he is a third parent under section 7612. Specifically, Stepfather


claims the court made a "critical error" by not considering that if Mother predeceases him or should they divorce, as a stepparent he would have "at best, an extraordinarily limited right of access" to Child which could "destroy[]" their bond.

We agree with the family court's assessment that "this is a very difficult situation" because all three adults love Child, who is bonded to each of them. But section 7612, subdivision (c) provides that a court may recognize more than two parents only in rare cases where detriment to the child-that is, removal from a stable, healthy relationship-would otherwise result. Harm from speculative future detriment, which is all Stepfather points to, is insufficient. (In re Donovan L. (2016) 244 Cal.App.4th 1075, 1093 (Donovan L.).) Accordingly, we affirm the judgment.


Mother and Stepfather have been married to each other for about 12 years. During the marriage, Mother had an affair with Bio-Father and became pregnant with Child. DNA analysis established that Bio-Father is Child's biological father.

Child was born in 2018. Bio-Father was present at her birth and holds her out as his daughter. He and Mother lived with Child for about the first year of Child's life. He has a loving relationship with Child, and she has bonded with him.

Through no fault of his own, Stepfather was not part of Child's life until she was one year old because Mother concealed her from him. But when


informed, he and Mother reconciled and resumed living together (with Child). Stepfather refers to Child as his "adopted daughter." Together with Mother, he cares for Child on a daily basis and loves her very much. According to Mother, they are "a very happy and stable family." They have also "accepted" Bio-Father as part of Child's life, even giving him a key and an "open invitation" to their home.

In May 2019, asserting that Mother had "revoked [his] access" to Child, Bio-Father filed a petition to establish paternal relationship, naming only Mother as respondent. In an accompanying declaration, he asserted that Child "has been [his] entire world." In response, Mother asked the court to determine that Stepfather is Child's father, or alternatively "a finding of two fathers" under section 7612.

After joining Stepfather as a party to the proceedings, the court conducted a trial limited to parentage issues. Mother, Stepfather, and Bio-Father each testified. [4]

There was no request for a statement of decision; nevertheless, the court prepared a judgment containing certain findings and legal conclusions. The court noted all three adults love Child, who was "bonded to all [of] them to a significant extent." The court determined that Stepfather is a presumed parent under section 7611, subdivision (a), and Bio-Father is a presumed parent under section 7611, subdivision (d). [5] Stating that Stepfather can


"love [Child] and be there for her as a stepfather," the court concluded that "recognizing only two parents would not be detrimental" to Child. After "weighing both sides," the court issued a judgment stating Bio-Father is the "legal father" and Stepfather "will not be a third parent" under section 7612, subdivision (c). Mother and Stepfather appeal. [6]


Before the enactment of section 7612, subdivision (c), courts were prohibited from recognizing more than two parents. (See In re M.C. (2011) 195 Cal.App.4th 197, 214.) In cases like this one, involving competing presumptions under section 7611, the court was required to identify" 'the presumption which on the facts is founded on the weightier considerations of policy and logic'" (In re M.C, at p. 214.)

This changed in 2014 when the Legislature enacted subdivision (c) of section 7612. In "an appropriate action," a court may now recognize more than two claims to parentage if not doing so would be detrimental to the child:

"(c) In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to


parentage." (§ 7612, subd. (c), as amended by Stats. 2013, ch. 510, § 4.)

As this court explained in Donovan L., the Legislature intended...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT