California Courts Redefining Who Counts as a Parent: Could this Change Grandparent and Partner Rights?

By | December 29, 2011

As the definition of family in America expands and shifts, California courts are trying to keep pace by redefining individuals whom the law regards as parents.

Judges in recent California cases have moved beyond traditional notions of biology and adoption and have begun at times to assign parental rights to adults with no genetic or legal ties to children.

These cases are important in two respects: they are beginning to establish a de facto parenting role for individuals not related by blood to the child and secondly, they may be giving another chance to grandparents who play an important role in the child’s daily life.

Under current California  law, grandparents do not have a special standing for custody or visitation with a grandchild. The ruling in the U.S. Supreme  Court case  of Troxel v. Granville has said that “the interest of parents in the care, custody and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

The U.S. Supreme Court also made it clear that this fundamental right is implied  in grandparent visitation cases. The plurality opinion stated that statutes allowing grandparent visitation orders to be imposed over parental objection “present questions of constitutional import.” The Supreme Court flatly declared that a parent’s fundamental right to the “care, custody and control of their children” was “at issue in this case.” The Supreme Court struck down a Washington state grandparent visitation statute because it unconstitutionally infringed on that fundamental parental right.

State courts  considering non-parent visitation petitions must apply “a presumption that fit parents act in the best interests of their children.” Troxel requires that State courts must give “special weight” to a fit parent’s decision to deny non-parent visitation. “Choices [parents make] about the upbringing of children . . . are among associational rights . . . sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”

This principle must inform our understanding of the “special weight” Troxel requires courts to give to parents’ decisions concerning whether, when and how grandparents will associate with their children. Previous Supreme Court precedent indicates that “special weight” is a strong term signifying very considerable deference.

The “special weight” requirement, as illuminated by these prior Supreme Court cases, means that  deference provided to the parent’s wishes will only be overcome by compelling governmental interest and overwhelmingly clear factual circumstances supporting that governmental interest.

The question that arises is: have we now reached a point in the court’s evolution of defining the nature of families where there is a compelling governmental interest to shift the traditional balance of biological parental preference in child rearing?

In a recent Sacramento case, an appeals court said a woman who never adopted her ex-girlfriend’s children was nevertheless their parent because she acted like one – providing for them financially, cleaning up after them when they got sick, and volunteering at their school.

In the Dec. 9, 2011 ruling, the Sacramento-based Third District Court of Appeals said the woman had a good reason for not adopting the children. She was a colonel in the Air Force Reserve and was afraid of being expelled from the military if she violated the “don’t ask, don’t tell” policy in force at the time. The controversial policy, which began in 1993 and ended in September, barred openly gay men or lesbians from serving in the military.

Had the woman been open about her sexual orientation by forming a domestic partnership or adopting her girlfriend’s children, these overt acts might have ended her military career.

In this case ,the biological mother claimed she never intended for her same sex partner to be considered a de facto parent and always planned to be the children’s sole parent. Interestingly, the non-biological same sex partner acknowledged the bio-mother’s intentions during trial.

However, the appellate court said the adoptive mother’s intentions weren’t the deciding factor. Presiding Justice Cole Blease  wrote for the unanimous appellate court  panel that  whether the biological mother intended the other woman to obtain legal rights with respect to the children was  irrelevant because the mother encouraged participation in the children’s lives since birth and the other woman openly embraced the role of being a parent.

Experts said this case continues a trend in which courts have ruled that adults who aren’t biological or adoptive parents can still be assigned parental rights and responsibilities. This parenting role could clearly include not only a same or opposite sex partner but anyone else who participates in a parenting role for the child.

In this day and age, more grandparents are taking on both parental and financial support roles for their grandchildren. One or both biological parents may be absent from the parenting relationship, giving rise to the need for a grandparent to intervene.  Only further interpretation of this recent case will determine whether grandparents will finally be rewarded by the court system  for their significant involvement in a child’s life rather than being spurned when a parent  locks them out and the court falls back on a conservative interpretation of the Troxel rule.

The state has a great interest in having those who want the benefits of parenthood take on the responsibilities and obligations that go with parenthood. Children’s lives are more stable and psychologically secure when they are in a child-focused household. The state also benefits when private financial support and maintenance of the child prevents the child from being at risk of becoming a recipient of state welfare programs.

It is important to recognize an earlier California Supreme Court’s 2002 decision  as a backdrop to this evolving redefinition of family under California law. In  a case involving a boy identified as Nicholas H, the court granted custody to a woman’s former live-in boyfriend, who admitted he was not the boy’s biological father but had acted as his father since birth.

In this landmark case, the biological father was nowhere to be found. It is important to recognize that had the biological father been involved in this case and objected to the live- in boyfriend’s role, bio-dad may have successfully frustrated the legal outcome.

These recent cases are carefully examining the reality of evolving family systems and the children in those family networks to ascertain if a non-biological adult is actually functioning as a parent.

Parentage is finally being viewed from a child’s perspective rather than the perspective of blood  lineage. This child centered approach opens up the  definition of parent to one based on behavior. More weight is given to an adult child relationship continuing when the court ascertains it is in the child’s best interest not to interrupt a relationship the child has with someone that they rely on.

Determining the existence of these newly defined parenting relationships will turn on the facts and evidence presented to the court.  Predictably, there will be a need for each family system and the adults relationship to the child to be examined by the courts in cases where there is a dispute about the non-biological adult or grandparents role in the child’s life.

A contrary perspective to this evolving view of child custody can be found in a statement made by the attorney representing the biological mother in the recently decided appellate case. “If you are a single parent, and there’s not another parent somewhere,” she said, “you have to be careful about who you allow to have a relationship with your kids.”

This new case may give hope to grandparents  and non-biological partners stepping into a parenting role that now their role can be honored and legally protected by the California family law courts.

Arlene Kock, CEO of the Law Offices of Arlene D. Kock has over 30 years experience in handling difficult child custody and family law matters. Proficient in practicing in all Northern California Jurisdictions, Arlene Kock’s office is located in San Ramon CA and you may visit her website at  Ms. Kock is also a member of the LawGuru Attorney Network.

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