Filed 8/22/05 (opns. filed this date should appear in this sequence: S125912, S125643, & S126945)
IN THE SUPREME COURT OF CALIFORNIA
ELISA B.,
Petitioner,
S125912
v.
Ct.App. 3 C042077
THE SUPERIOR COURT
OF EL DORADO COUNTY,
El Dorado County
Respondent;
Super. Ct. No. PFS20010244
EMILY B. et al.,
Real Parties in Interest.
We granted review in this case, as well as in K.M. v. E.G. (Aug. 22, 2005,
S125643) __ Cal.4th __, and Kristine H. v. Lisa R. (Aug. 22, 2005, S126945)
__ Cal.4th __, to consider the parental rights and obligations, if any, of a woman
with regard to a child born to her partner in a lesbian relationship.
In the present action for child support filed by the El Dorado County
District Attorney, we conclude that a woman who agreed to raise children with her
lesbian partner, supported her partner’s artificial insemination using an
anonymous donor, and received the resulting twin children into her home and held
them out as her own, is the children’s parent under the Uniform Parentage Act and
has an obligation to support them.
1
FACTS
On June 7, 2001, the El Dorado County District Attorney filed a complaint
in superior court to establish that Elisa B. is a parent of two-year-old twins Kaia B.
and Ry B., who were born to Emily B.,1 and to order Elisa to pay child support.2
Elisa filed an answer in which she denied being the children’s parent.
A hearing was held at which Elisa testified that she entered into a lesbian
relationship with Emily in 1993. They began living together six months later.
Elisa obtained a tattoo that read “Emily, por vida,” which in Spanish means Emily,
for life. They introduced each other to friends as their “partner,” exchanged rings,
opened a joint bank account, and believed they were in a committed relationship.
Elisa and Emily discussed having children and decided that they both
wished to give birth. Because Elisa earned more than twice as much money as
Emily, they decided that Emily “would be the stay-at-home mother” and Elisa
“would be the primary breadwinner for the family.” At a sperm bank, they chose
a donor they both would use so the children would “be biological brothers and
sisters.”
After several unsuccessful attempts, Elisa became pregnant in February,
1997. Emily was present when Elisa was inseminated. Emily began the
1
In order to protect the confidentiality of the minors, we will refer to the
parties by their first names.
2
Family Code section 17400, subdivision (a), provides, in pertinent part:
“Each county shall maintain a local child support agency . . . that shall have the
responsibility for promptly and effectively establishing, modifying, and enforcing
child support obligations . . . and determining paternity in the case of a child born
out of wedlock. The local child support agency shall take appropriate action,
including criminal action in cooperation with the district attorneys, to establish,
modify, and enforce child support . . . .”
2
insemination process in June of 1997 and became pregnant in August, 1997. Elisa
was present when Emily was inseminated and, the next day, Elisa picked up
additional sperm at the sperm bank and again inseminated Emily at their home to
“make sure she got pregnant.” They went to each other’s medical appointments
during pregnancy and attended child birth classes together so that each could act
as a “coach” for the other during birth, including cutting the children’s umbilical
cords.
Elisa gave birth to Chance in November, 1997, and Emily gave birth to Ry
and Kaia prematurely in March, 1998. Ry had medical problems; he suffered
from Down’s Syndrome, and required heart surgery.
They jointly selected the children’s names, joining their surnames with a
hyphen to form the children’s surname. They each breast fed all of the children.
Elisa claimed all three children as her dependents on her tax returns and obtained a
life insurance policy on herself naming Emily as the beneficiary so that if
“anything happened” to her, all three children would be “cared for.” Elisa
believed the children would be considered both of their children.
Elisa’s parents referred to the twins as their grandchildren and her sister
referred to the twins as part of their family and referred to Elisa as their mother.
Elisa treated all of the children as hers and told a prospective employer that she
had triplets. Elisa and Emily identified themselves as coparents of Ry at an
organization arranging care for his Down’s Syndrome.
Elisa supported the household financially. Emily was not working. Emily
testified that she would not have become pregnant if Elisa had not promised to
support her financially, but Elisa denied that any financial arrangements were
discussed before the birth of the children. Elisa later acknowledged in her
testimony, however, that Emily “was going to be an at-home mom for maybe a
3
couple of years and then the kids were going to go into day care and she was
going to return to work.”
They consulted an attorney regarding adopting “each other’s child,” but
never did so. Nor did they register as domestic partners or execute a written
agreement concerning the children. Elisa stated she later reconsidered adoption
because she had misgivings about Emily adopting Chance.
Elisa and Emily separated in November, 1999. Elisa promised to support
Emily and the twins “as much as I possibly could” and initially paid the mortgage
payments of approximately $1,500 per month on the house in which Emily and the
twins continued to live, as well as other expenses. Emily applied for aid. When
they sold the house and Emily and the twins moved into an apartment in
November, 2000, Elisa paid Emily $1,000 a month. In early 2001, Elisa stated she
lost her position as a full-time employee and told Emily she no longer could
support her and the twins. At the time of trial, Elisa was earning $95,000 a year.
The superior court rendered a written decision on July 11, 2002, finding
that Elisa and Emily had rejected the option of using a private sperm donor
because “[t]hey wanted the child to be raised exclusively by them as a couple.”
The court further found that they intended to create a child and “acted in all
respects as a family,” adding “that a person who uses reproductive technology is
accountable as a de facto legal parent for the support of that child. Legal
parentage is not determined exclusively by biology.”
The court further found that Elisa was obligated to support the twins under
the doctrine of equitable estoppel, finding Emily “agreed to have children with
Respondent, and relied on her promise to raise and support her children. She
would not have agreed to impregnation but for this agreement and understanding.”
“The need for the application of this doctrine is underscored by the fact that the
4
decision of Respondent to create a family and desert them has caused the
remaining family members to seek county assistance. One child that was created
has special needs that will require the remaining parent or the County to be
financially responsible of those needs. The child was deprived of the right to have
a traditional father to take care of the financial needs of this child. Respondent
chose to step in those shoes and assume the role and responsibility of the ‘other’
parent. This should be her responsibility and not the responsibility of the
taxpayer.” Elisa was subsequently ordered to pay child support in the amount of
$907.50 per child for a total of $1815 per month.
Elisa petitioned the Court of Appeal for a writ of mandate, and the court
directed the superior court to vacate its order and dismiss the action, concluding
that Elisa had no obligation to pay child support because she was not a parent of
the twins within the meaning of the Uniform Parentage Act (Fam. Code, § 7600 et
seq.). We granted review.
DISCUSSION
We must determine whether the Court of Appeal erred in ruling that Elisa
could not be a parent of the twins born to her lesbian partner, and thus had no
obligation to support them. This question is governed by the Uniform Parentage
Act (UPA). (Fam. Code, § 7600 et seq.)3 The UPA defines the “ ‘[p]arent and
child relationship’ ” as “the legal relationship existing between a child and the
child’s natural or adoptive parents . . . . The term includes the mother and child
relationship and the father and child relationship.” (§ 7601.) One purpose of the
UPA was to eliminate distinctions based upon whether a child was born into a
3
Further statutory references are to the Family Code, unless otherwise noted.
5
marriage, and thus was “legitimate,” or was born to unmarried parents, and thus
was “illegitimate.” (Johnson v. Calvert (1993) 5 Cal.4th 84, 88.) Thus, the UPA
provides that the parentage of a child does not depend upon “ ‘the marital status of
the parents’ ” (Johnson, supra, at p. 89), stating: “The parent and child
relationship extends equally to every child and to every parent, regardless of the
marital status of the parents.” (§ 7602.)
The UPA contains separate provisions defining who is a “mother” and who
is a “father.” Section 7610 provides that “[t]he parent and child relationship may
be established . . . : [¶] (a) Between a child and the natural mother . . . by proof of
her having given birth to the child, or under this part.” Subdivision (b) of section
7610 states that the parental relationship “[b]etween a child and the natural father
. . . may be established under this part.”
Section 7611 provides several circumstances in which “[a] man is
presumed to be the natural father of a child,” including: if he is the husband of the
child’s mother, is not impotent or sterile, and was cohabiting with her (§ 7540); if
he signs a voluntary declaration of paternity stating he is the “biological father of
the child” (§ 7574, subd. (a)(6)); and if “[h]e receives the child into his home and
openly holds out the child as his natural child” (§ 7611, subd. (d)).
Although, as noted above, the UPA contains separate provisions defining
who is a mother and who is a father, it expressly provides that in determining the
existence of a mother and child relationship, “[i]nsofar as practicable, the
provisions of this part applicable to the father and child relationship apply.”
(§ 7650.)
The Court of Appeal correctly recognized that, under the UPA, Emily has a
parent and child relationship with each of the twins because she gave birth to
them. (§ 7610, subd. (a).) Thus, the Court of Appeal concluded, Emily is the
6
twins’ natural mother. Relying upon our statement in Johnson v. Calvert, supra, 5
Cal.4th 84, 92, that “for any child California law recognizes only one natural
mother,” the Court of Appeal reasoned that Elisa, therefore, could not also be the
natural mother of the twins and thus “has no legal maternal relationship with the
children under the UPA.”
The Attorney General, appearing pursuant to section 17406 to “represent
the public interest in establishing, modifying, and enforcing support obligations,”
argues that the Court of Appeal erred, stating: “Johnson’s one-natural-mother
comment cannot be thoughtlessly interpreted to deprive the child of same-sex
couples the same opportunity as other children to two parents and to two sources
of child support when only two parties are eligible for parentage.” As we shall
explain, the Attorney General is correct that our statement in Johnson that a child
can have “only one natural mother” does not mean that both Elisa and Emily
cannot be parents of the twins.
The issue before us in Johnson was whether a wife whose ovum was
fertilized in vitro by her husband’s sperm and implanted in a surrogate mother was
the mother of the child so produced, rather than the surrogate. (Johnson v.
Calvert, supra, 5 Cal.4th 84, 87.) The surrogate claimed that she was the child’s
mother because she had given birth to the child. No provision of the UPA
expressly addresses the parental rights of a woman who, like the wife in Johnson
v. Calvert, has not given birth to a child, but has a genetic relationship because she
supplied the ovum used to impregnate the birth mother. But, as noted above, the
UPA does provide that provisions applicable to determining a father and child
relationship shall be used to determine a mother and child relationship “[i]nsofar
as practicable.” (Former Civ. Code, § 7015, now Fam. Code, § 7650.)
Accordingly, we looked to the provisions regarding presumptions of paternity and
7
concluded that “genetic consanguinity” could be the basis for a finding of
maternity just as it is for paternity. (Johnson v. Calvert, supra, 5 Cal.4th 84, 92.)
We concluded, therefore, that both women – the surrogate who gave birth
to the child and the wife who supplied the ovum – had “adduced evidence of a
mother and child relationship as contemplated by the Act.” (Johnson v. Calvert,
supra, 5 Cal.4th 84, 92.) Anticipating this result, the American Civil Liberties
Union appearing as amicus curiae urged this court to rule that the child, therefore,
had two mothers. Because it was undisputed that the husband, who had supplied
the semen used to impregnate the surrogate, was the child’s father, this would
have left the child with three parents. We declined the invitation, stating: “Even
though rising divorce rates have made multiple parent arrangements common in
our society, we see no compelling reason to recognize such a situation here. The
Calverts are the genetic and intending parents of their son and have provided him,
by all accounts, with a stable, intact, and nurturing home. To recognize parental
rights in a third party with whom the Calvert family has had little contact since
shortly after the child’s birth would diminish [the wife]’s role as mother.” (Id. at
p. 92, fn. 8.) We held instead that “for any child California law recognizes only
one natural mother” (id. at p. 92), and proceeded to conclude that the wife, rather
than the surrogate, was the child’s mother: “We conclude that although the Act
recognizes both genetic consanguinity and giving birth as means of establishing a
mother and child relationship, when the two means do not coincide in one woman,
she who intended to procreate the child – that is, she who intended to bring about
the birth of a child that she intended to raise as her own – is the natural mother
under California law.” (Id. at p. 93, fn. omitted.)
In Johnson, therefore, we addressed the situation in which three people
claimed to be the child’s parents: the husband, who undoubtedly was the child’s
8
father, and two women, who presented conflicting claims to being the child’s
mother. We rejected the suggestion of amicus curiae that both the wife and the
surrogate could be the child’s mother, stating that a child can have only one
mother, but what we considered and rejected in Johnson was the argument that a
child could have three parents: a father and two mothers.4 We did not address the
question presented in this case of whether a child could have two parents, both of
whom are women.5 The Court of Appeal in the present case erred, therefore, in
concluding that our statement in Johnson that a child can have only one mother
under California law resolved the issue presented in this case. “Language used in
any opinion is of course to be understood in the light of the facts and the issue then
before the court, and an opinion is not authority for a proposition not therein
considered. [Citation.]” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)6
4
We have not decided “whether there exists an overriding legislative policy
limiting a child to two parents.” (Sharon S. v. Superior Court (2003) 31 Cal.4th
417, 427, fn. 6.)
5
The situation is analogous to that in Sharon S. v. Superior Court, supra, 31
Cal.4th 417, in which we held that a mother could consent to a “second parent”
adoption by her lesbian partner despite our earlier dictum in Estate of Johnson
(1912) 164 Cal. 312, 317, that the “duties of a child cannot be owed to two fathers
at one time.” We explained that this statement was “uttered in the context of
concluding that a birth father who ‘by virtue of the adoption proceeding [in that
case], ceased to sustain the legal relation of father’ could not thereafter inherit the
adopted person’s estate [citation], we did not consider the contingency before us
today – viz., two parties who voluntarily have waived the benefit of section 8617
in order to effect a second parent adoption, where the natural parent’s relationship
with the child is not superseded.” (Sharon S., at p. 430, fn. 7.)
6
Elisa also relies upon our observation in Adoption of Michael H. (1995) 10
Cal.4th 1043, 1051, that “In essence, therefore, our statutory scheme creates three
classes of parents: mothers, fathers who are presumed fathers, and fathers who are
not presumed fathers. [Citation.]” The issue in that case was whether an unwed
father was a presumed father and thus could withhold his consent to the mother’s
(Footnote continued on next page.)
9
We perceive no reason why both parents of a child cannot be women. That
result now is possible under the current version of the domestic partnership
statutes, which took effect this year. (§ 297 et seq.) Two women “who have
chosen to share one another’s lives in an intimate and committed relationship of
mutual caring” and have a common residence (§ 297) can file with the Secretary
of State a “Declaration of Domestic Partnership” (§ 298). Section 297.5,
subdivision (d) provides, in pertinent part: “The rights and obligations of
registered domestic partners with respect to a child of either of them shall be the
same as those of spouses.”
Prior to the effective date of the current domestic partnership statutes, we
recognized in an adoption case that a child can have two parents, both of whom
are women. In Sharon S. v. Superior Court, supra, 31 Cal.4th 417, we upheld a
“second parent” adoption in which the mother of a child that had been conceived
by means of artificial insemination consented to adoption of the child by the
mother’s lesbian partner. If both parents of an adopted child can be women, we
see no reason why the twins in the present case cannot have two parents, both of
whom are women.
Having determined that our decision in Johnson does not preclude a child
from having two parents both of whom are women and that no reason appears that
a child’s two parents cannot both be women, we proceed to examine the UPA to
determine whether Elisa is a parent to the twins in addition to Emily. As noted
(Footnote continued from previous page.)
planned adoption of their child. We did not consider the questions raised in the
present case.
10
above, section 7650 provides that provisions applicable to determining a father
and child relationship shall be used to determine a mother and child relationship
“insofar as practicable.” (Johnson v. Calvert, supra, 5 Cal.4th 84, 90; In re
Marriage of Buzzanca (1998) 61 Cal.App.4th 1410, 1418 [the declaration in
section 7613 that a husband who consents to artificial insemination is “treated in
law” as the father of the child applies equally to the wife if a surrogate, rather than
the wife, is artificially inseminated, making both the wife and the husband the
parents of the child so produced].)
Subdivision (d) of section 7611 states that a man is presumed to be the
natural father of a child if “[h]e receives the child into his home and openly holds
out the child as his natural child.” The Court of Appeal in In re Karen C. (2002)
101 Cal.App.4th 932, 938, held that subdivision (d) of section 7611 “should apply
equally to women.” This conclusion was echoed by the court in In re Salvador M.
(2003) 111 Cal.App.4th 1353, 1357, which stated: “Though most of the
decisional law has focused on the definition of the presumed father, the legal
principles concerning the presumed father apply equally to a woman seeking
presumed mother status. [Citation.]”7
Applying section 7611, subdivision (d), we must determine whether Elisa
received the twins into her home and openly held them out as her natural children.
There is no doubt that Elisa satisfied the first part of this test; it is undisputed that
Elisa received the twins into her home. Our inquiry focuses, therefore, on whether
she openly held out the twins as her natural children.
7
The fact that questions involving the determination of parentage “focus on
paternity is likely due to the fact the identify of a child’s birth mother is rarely in
dispute.” (In re Karen C., supra, 101 Cal.App.4th 932, 936.)
11
The circumstance that Elisa has no genetic connection to the twins does not
necessarily mean that she did not hold out the twins as her “natural” children
under section 7611. We held in In re Nicholas H. (2002) 28 Cal.4th 56 that the
presumption under section 7611, subdivision (d), that a man who receives a child
into his home and openly holds the child out as his natural child is not necessarily
rebutted when he admits he is not the child’s biological father.
The presumed father in Nicholas H., Thomas, met the child’s mother,
Kimberly, when she was pregnant with Nicholas. Nevertheless, Thomas was
named as the child’s father on his birth certificate and provided a home for the
child and his mother for several years. Thomas did not marry Kimberly. When
Nicholas was removed by the court from Kimberly’s care, Thomas sought custody
as the child’s presumed father, although he admitted he was not Nicholas’s
biological father.
We held in Nicholas H. that Thomas was presumed to be Nicholas’s father
despite his admission that he was not Nicholas’s biological father. The Court of
Appeal had reached the opposite conclusion, observing that “ ‘the Legislature has
used the term ‘natural’ to mean ‘biological’ ” and concluding that the presumption
under section 7611, subdivision (d) is rebutted under section 7612, subdivision (a)
by clear and convincing evidence “that the man is not the child’s natural,
biological father.” (In re Nicholas H., supra, 28 Cal.4th 56, 62-63.) We noted,
however, that the UPA does not state that the presumption under section 7611,
subdivision (d), is rebutted by evidence that the presumed father is not the child’s
biological father, but rather that it may be rebutted in an appropriate action by
such evidence. (In re Nicholas H., supra, at p. 63.) We held that Nicholas H. was
not an appropriate action in which to rebut the presumption because no one had
raised a conflicting claim to being the child’s father. Applying the presumption,
12
therefore, would produce the “harsh result” of leaving the child fatherless. (Id. at
p. 59.) We quoted language from the Court of Appeal opinion in Steven W. v.
Matthew S. (1995) 33 Cal.App.4th 1108, 1116-1117, recognizing that “ ‘ “ ‘ “[a]
man who has lived with a child, treating it as his son or daughter, has developed a
relationship with the child that should not be lightly dissolved . . . . This social
relationship is much more important, to the child at least, than a biological
relationship of actual paternity. . . .” ’ ” ’ ” (In re Nicholas H., supra, 28 Cal.4th at
p. 65; In re Jesusa V. (2004) 32 Cal.4th 588, 604 [“the statute did not contemplate
a reflexive rule that biological paternity would rebut the section 7611 presumption
in all cases, without concern for whether rebuttal was ‘appropriate’ in the
particular circumstances”].)
The Court of Appeal in In re Karen C., supra, 101 Cal.App.4th 932, 938,
applied the principles discussed in Nicholas H. regarding presumed fathers and
concluded that a woman with no biological connection to a child could be a
presumed mother under section 7611, subdivision (d). Twelve-year-old Karen C.
petitioned for an order determining the existence of a mother and child
relationship between her and Leticia C., who had raised her from birth. Leticia
admitted she was not Karen’s biological mother, explaining that Karen’s birth
mother had tried unsuccessfully to abort her pregnancy and then agreed to give the
child to Leticia. The birth mother falsely told the hospital staff that her name was
Leticia C. so that Leticia’s name would appear on the child’s birth certificate. The
birth mother gave Karen to Leticia promptly after the child was born. The
juvenile court denied Karen’s petition, ruling that Leticia could not be Karen’s
mother because she had not given birth to her and had no genetic relationship.
The Court of Appeal reversed, determining that Leticia was the child’s presumed
mother under section 7611 because she had taken Karen into her home and raised
13
her as her child. (In re Karen C., supra, 101 Cal.App.4th at p. 938.) The court
remanded the matter to the juvenile court to apply the rule in Nicholas H. to
determine whether this was “ ‘an appropriate action’ ” in which to find the
presumption that Leticia was Karen’s mother was rebutted by the fact that she had
not given birth to her. (Ibid.)
Similarly, the Court of Appeal in In re Salvador M., supra, 111
Cal.App.4th 1353, 1357-1378, held that a woman who had raised her half brother
as her son could be the child’s presumed mother under section 7611, subdivision
(d). In that case, the child’s mother died when he was three years old and he was
raised by his 18-year-old half sister, who had a four-year-old daughter of her own
and later gave birth again. The child believed that his half sister was his mother
and that her offspring were his siblings. His half sister revealed her true relation to
the child “ ‘in official matters, such as school registration,’ ” but maintained that
“ ‘to the rest of the world [the child] is my son.’ ” (In re Salvador M., supra, at p.
1356.) The Court of Appeal applied section 7611, subdivision (d), stating: “The
paternity presumptions are driven, not by biological paternity, but by the state’s
interest in the welfare of the child and the integrity of the family. [Citation.]” (In
re Salvador M., supra, at pp. 1357-1358.) The court concluded that the half sister
had openly held out the child as her own, despite admitting to various officials that
she was the child’s half sister, noting that “the most compelling evidence” that she
held out the child as her own was that the eight-year-old child “believed appellant
was his mother” which supported the conclusion that she held the child “out to the
community as her son.” (Id. at p. 1358.) Having concluded that she was the
child’s presumed mother under section 7611, subdivision (d), the court concluded
that this was “clearly not an appropriate case” to find the presumption was
rebutted by the fact that she was not the child’s birth mother, “because there was
14
no competing maternal interest and to sever this deeply rooted mother/child bond
would contravene the state’s interest in maintaining the family relationship.” (In
re Salvador M., supra, at p. 1359.)
We conclude that the present case, like Nicholas H. and Salvador M., is not
“an appropriate action” in which to rebut the presumption of presumed parenthood
with proof that Elisa is not the twins’ biological parent. This is generally a matter
within the discretion of the superior court (In re Jesusa V., supra, 32 Cal.4th 588,
606), but we need not remand the matter to permit the superior court to exercise its
discretion because it would be an abuse of discretion to conclude that the
presumption may be rebutted in the present case. It is undisputed that Elisa
actively consented to, and participated in, the artificial insemination of her partner
with the understanding that the resulting child or children would be raised by
Emily and her as coparents, and they did act as coparents for a substantial period
of time. Elisa received the twins into her home and held them out to the world as
her natural children. She gave the twins and the child to whom she had given birth
the same surname, which was formed by joining her surname to her partner’s. The
twins were half siblings to the child to whom Elisa had given birth. She breast fed
all three children, claimed all three children as her dependents on her tax returns,
and told a prospective employer that she had triplets. Even at the hearing before
the superior court, Elisa candidly testified that she considered herself to be the
twins’ mother.
Declaring that Elisa cannot be the twins’ parent and, thus, has no obligation
to support them because she is not biologically related to them would produce a
result similar to the situation we sought to avoid in Nicholas H. of leaving the
child fatherless. The twins in the present case have no father because they were
conceived by means of artificial insemination using an anonymous semen donor.
15
Rebutting the presumption that Elisa is the twin’s parent would leave them with
only one parent and would deprive them of the support of their second parent.
Because Emily is financially unable to support the twins, the financial burden of
supporting the twins would be borne by the county, rather than Elisa.
In establishing a system for a voluntary declaration of paternity in
section 7570, the Legislature declared: “There is a compelling state interest in
establishing paternity for all children. Establishing paternity is the first step
toward a child support award, which, in turn, provides children with equal rights
and access to benefits, including, but not limited to, social security, health
insurance, survivors’ benefits, military benefits, and inheritance rights. . . .”
By recognizing the value of determining paternity, the Legislature
implicitly recognized the value of having two parents, rather than one, as a source
of both emotional and financial support, especially when the obligation to support
the child would otherwise fall to the public. (See Librers v. Black (2005) 129
Cal.App.4th 114, 123 [“whenever possible, a child should have the benefit of two
parents to support and nurture him or her”]; In re Marriage of Pedregon (2003)
107 Cal.App.4th 1284 [recognizing the importance to a child of having the support
of two parents]; Clevenger v. Clevenger (1961) 189 Cal.App.2d 658, 662.)
We observed in dicta in Nicholas H. that it would be appropriate to rebut
the section 7611 presumption of parentage if “a court decides that the legal rights
and obligations of parenthood should devolve upon an unwilling candidate.” (In
re Nicholas H., supra, 28 Cal.4th 56, 70.) But we decline to apply our dicta in
Nicholas H. here, because we did not consider in Nicholas H. a situation like that
in the present case.
Although Elisa presently is unwilling to accept the obligations of
parenthood, this was not always so. She actively assisted Emily in becoming
16
pregnant with the expressed intention of enjoying the rights and accepting the
responsibilities of parenting the resulting children. She accepted those obligations
and enjoyed those rights for years. Elisa’s present unwillingness to accept her
parental obligations does not affect her status as the children’s mother based upon
her conduct during the first years of their lives.
Further, our observation in Nicholas H. that the obligations of parenthood
should not be forced upon an unwilling candidate who is not biologically related
to the child must be understood in light of the circumstances before us in Nicholas
H. In that case, as noted above, the presumed father met the child’s mother when
she was pregnant and voluntarily accepted the unborn child as his own. When the
child later was removed from the mother’s custody, the presumed father was
denied custody of the child because he was not the child’s biological father.
In the present case, Elisa did not meet Emily after she was pregnant, but
rather was in a committed relationship with her when they decided to have
children together. Elisa actively assisted Emily in becoming pregnant, with the
understanding that they would raise the resulting children together. Having helped
cause the children to be born, and having raised them as her own, Emily should
not be permitted to later abandon the twins simply because her relationship with
Emily dissolved.
As we noted in the context of a husband who consented to the artificial
insemination of his wife using an anonymous sperm donor, but later denied
responsibility for the resulting child: “One who consents to the production of a
child cannot create a temporary relation to be assumed and disclaimed at will, but
the arrangement must be of such character as to impose an obligation of
supporting those for whose existence he is directly responsible.” (People v.
Sorensen (1968) 68 Cal.2d 280, 285; Dunkin v. Boskey (2000) 82 Cal.App.4th
17
171, 191.) We observed that the “intent of the Legislature obviously was to
include every child, legitimate or illegitimate, born or unborn, and enforce the
obligation of support against the person who could be determined to be the lawful
parent.” (People v. Sorensen, supra, 68 Cal.2d at pp. 284-285, fn. omitted.)
Further: “a reasonable man who, because of his inability to procreate, actively
participates and consents to his wife’s artificial insemination in the hope that a
child will be produced whom they will treat as their own, knows that such
behavior carries with it the legal responsibilities of fatherhood and criminal
responsibility for nonsupport. . . . [I]t is safe to assume that without defendant’s
active participation and consent the child would not have been procreated.” (Id. at
p. 285; see Dunkin v. Boskey, supra, 82 Cal.App.4th at p. 190.)
We were careful in Nicholas H., therefore, not to suggest that every man
who begins living with a woman when she is pregnant and continues to do so after
the child is born necessarily becomes a presumed father of the child, even against
his wishes. The Legislature surely did not intend to punish a man like the one in
Nicholas H. who voluntarily provides support for a child who was conceived
before he met the mother, by transforming that act of kindness into a legal
obligation.
But our observation in Nicholas H. loses its force in a case like the one at
bar in which the presumed mother under section 7611, subdivision (d), acted
together with the birth mother to cause the child to be conceived. In such
circumstances, unlike the situation before us in Nicholas H., we believe the
Legislature would have intended to impose upon the presumed father or mother
the legal obligation to support the child whom she caused to be born. As stated by
amicus curiae the California State Association of Counties, representing all 58
counties in California: “A person who actively participates in bringing children
18
into the world, takes the children into her home and holds them out as her own,
and receives and enjoys the benefits of parenthood, should be responsible for the
support of those children – regardless of her gender or sexual orientation.”
We conclude, therefore, that Elisa is a presumed mother of the twins under
section 7611, subdivision (d), because she received the children into her home and
openly held them out as her natural children, and that this is not an appropriate
action in which to rebut the presumption that Elisa is the twins’ parent with proof
that she is not the children’s biological mother because she actively participated in
causing the children to be conceived with the understanding that she would raise
the children as her own together with the birth mother, she voluntarily accepted
the rights and obligations of parenthood after the children were born, and there are
no competing claims to her being the children’s second parent.
Elisa relies upon the Court of Appeal decisions in Curiale v. Reagan (1990)
222 Cal.App.3d 1597, Nancy S. v. Michele G. (1991) 228 Cal.App.3d 831, and
West v. Superior Court (1997) 59 Cal.App.4th 302, for the proposition that “non-
biological partners from a same-sex relationship, who have not adopted their
partners’ children, are deemed ‘nonparents’ for purposes of custody or visitation”
and thus “must also be deemed nonparents for purposes of establishing child
support orders for those same children.” As we explain below, these decisions
predated our recognition in Nicholas H. and Jesusa V. that a person with no
biological relationship could be a presumed parent under section 7611,
subdivision (d). Accordingly, we do not find these cases persuasive.
Curiale involved a situation similar to that in the present case in which two
women in a lesbian relationship agreed that one of them “would conceive a child
through artificial insemination and that the child would be raised by both of
them.” (Curiale v. Reagan, supra, 222 Cal.App.3d 1597, 1599.) The couple’s
19
relationship dissolved when the child was two years old, and the plaintiff filed “ ‘a
complaint to establish de facto parent status/maternity and for custody and
visitation.” (Ibid.) The Court of Appeal summarily dismissed the plaintiff’s
reliance upon the UPA, stating “it has no application where, as here, it is
undisputed defendant is the natural mother of the child. [Citation.]” (Curiale v.
Reagan, supra, at p. 1600.) The decision, therefore, did not consider the
applicability of the predecessor to section 7611, subdivision (d), which was former
Civil Code section 7004 (Stats. 1987, ch. 192, § 1, p. 1155). The court concluded,
without discussion or explanation: “The Legislature has not conferred upon one in
plaintiff’s position, a nonparent in a same-sex bilateral relationship, any right of
custody or visitation upon the termination of the relationship.” (Curiale v.
Reagan, supra, 222 Cal.App.3d at p. 1600.) But the court’s reasoning was
circular, because it began its analysis by assuming the plaintiff was a “nonparent”
even though the issue to be decided was whether the plaintiff was a parent under
the UPA.
Nancy S. involved two women in a lesbian relationship who had two
children by artificially inseminating Nancy on two occasions. (Nancy S. v.
Michele G., supra, 228 Cal.App.3d 831, 834.) Michele was listed on the birth
certificates as the father and the children were given Michele’s family surname.
The children referred to both Nancy and Michele as “mom.” After the couple’s
relationship dissolved, Nancy filed an action under the UPA to obtain a
declaration that she was the sole parent of the children. The Court of Appeal
determined that Michele was not a parent under the UPA based in part on the
circumstance that “[i]t is undisputed that [Michele] is not the natural mother” of
the children. (Nancy S., supra, at p. 836.) Nancy S. was decided before we
20
recognized in In re Nicholas H., supra, 28 Cal.4th 56, that “natural” as used in the
UPA does not always mean “biological.”
In West v. Superior Court, supra, 59 Cal.App.4th 302, two women in a
lesbian relationship agreed that one of them, Barbara West, would conceive a
child through artificial insemination and that the child would be raised by them
jointly. When the couple’s relationship ended, West’s partner, Pamela Lockrem,
filed an action to be declared the child’s parent under the UPA. The same Court
of Appeal that had decided Curiale simply relied upon its earlier decision without
providing additional authority or analysis and concluded that Lockrem had no
parental relationship with the child.
As noted above, we held in In re Nicholas H., supra, 28 Cal.4th 56, and In
re Jesusa V., supra, 32 Cal.4th 588, 604, that a natural parent within the meaning
of the UPA could be a person with no biological connection to the child, and the
Court of Appeal in In re Karen C., supra, 101 Cal.App.4th 932, 938, held that a
woman with no biological connection to a child could be a presumed mother
under section 7611, subdivision (d). Similarly, the Court of Appeal in In re
Salvador M., supra, 111 Cal.App.4th 1353, 1357, held that a woman who was the
half sister of a child could, nevertheless, be the child’s natural mother under the
UPA. The courts in Curiale v. Reagan, supra, 222 Cal.App.3d 1597, Nancy S. v.
Michele G., supra, 228 Cal.App.3d 831, and West v. Superior Court, supra, 59
Cal.App.4th 302, did not have the benefit of this authority and did not consider the
applicability of section 7611, subdivision (d) regarding presumed fathers.
Accordingly, these decisions do not aid our analysis and we disapprove them to
the extent they are inconsistent with the present opinion.
21
DISPOSITION
The judgment of the Court of Appeal is reversed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
22
CONCURRING OPINION BY KENNARD, J.
I concur in the majority’s decision. I write separately to point out that, in
my view, this court’s recent decision In re Nicholas H. (2002) 28 Cal.4th 56
(Nicholas H.), which holds that a nonbiological father may nonetheless meet the
statutory definition of a “presumed” father, makes the majority’s outcome in this
case a foregone conclusion.
I.
Emily and Elisa began living as a couple in 1993. Each woman wanted to
bear her own child; eventually each underwent artificial insemination with sperm
from the same donor so that their offspring would be genetically related. In 1997,
Elisa gave birth to a son, Chance. In 1998, Emily gave birth to twins (son Ry and
daughter Kaia). Ry was born with serious health problems, including Down’s
syndrome. All three children were given the same hyphenated surname. As they
had planned, Emily stayed home and cared for the three children, while Elisa
worked to support the family. Elisa claimed all three children as her dependents
for tax purposes and on an application for health insurance, and she described
herself in a job interview as the mother of triplets.
In late 1999, the couple separated, but for some time Elisa continued to pay
rent and living expenses for Emily and the twins. In December 1999, Emily began
receiving public assistance from El Dorado County. In May 2001, Elisa told
Emily that because she no longer had a full-time job she could not continue to
support Emily and the twins. The next month, the county filed a petition in the
1
superior court to determine that Elisa was a parent of the twins born to Emily, the
first step in making Elisa financially responsible for them.
The trial court, relying on this court’s test in Johnson v. Calvert (1993) 5
Cal.4th 84 (the preconception intent to become a parent), ruled that Elisa had
intended to bring about the birth of Emily’s children, and thus her obligation to
them should be “the same legal duty and responsibility of a man found to be a
presumed father”—that is, a man who has received a child into his home and
openly held it out as his natural child. (Fam. Code, § 7611, subd. (d).)1 It ordered
Elisa to pay child support for the twins. Elisa successfully petitioned the Court of
Appeal for writ relief. The Court of Appeal reasoned that under California’s
statutory scheme Elisa was neither the natural nor the adoptive mother of her
partner’s twins, nor could she be their father, and therefore Elisa had no legally
recognized parental status with respect to the twins. Accordingly, it directed the
trial court to vacate the child support order.
II.
Under California law, a man “is presumed to be the natural father of a
child” in various circumstances involving his marriage or attempted marriage to
the child’s mother, or if he “receives the child into his home and openly holds out
the child as his natural child.” (Fam. Code, § 7611, subd. (d).) Section 7650
expressly directs that “[i]nsofar as practicable,” the provisions pertaining to the
father and child relationship apply in determining the existence of a mother and
child relationship. (§ 7650.)
In Nicholas H., supra, 28 Cal.4th 56, this court held that a nonbiological
father who receives a child into his home and holds the child out as his natural
1
All further statutory references are to the Family Code.
2
child can be the “presumed” father of the child. If a nonbiological father can by
his conduct meet the statutory definition of a presumed father, then by parity of
reasoning a nonbiological mother can become a presumed mother, as the majority
concludes. Here, Elisa became a presumed mother of the twins to which Emily
gave birth when she both received the twins into her home and openly held them
out as her natural children. (§ 7611, subd. (d).)
The legal presumption of fatherhood or motherhood created by receiving
and holding out the child as one’s natural child “may be rebutted in an appropriate
action only by clear and convincing evidence.” (§ 7612, subd. (a).) We
concluded in Nicholas H, supra, 28 Cal.4th 56, that the action was not an
appropriate one in which to allow rebuttal of the presumption, because the result
there would have been to leave Nicholas fatherless.
This case too is not “an appropriate action” in which to rebut the
presumption of presumed motherhood. (§ 7612, subd. (a).) The county, which
since 1999 has provided the twins with public financial assistance and medical
care, brought on their behalf an action in superior court to establish their parentage
as a predicate to obtaining a court order requiring Elisa to pay child support.
Young Ry and Kaia, no less than any other children in this state, have a right to
support from both their parents. Those parents are Emily, as the biological
mother, and Elisa, because she meets the statutory definition of a presumed
mother. To permit rebuttal of the legal presumption that Elisa is the presumed
mother of the twins would leave the twins with the support of only one parent,
Emily, who, until now, has been receiving financial support and medical care from
the taxpayers of the county in which she and the twins reside.
Had a man who, like Elisa, lacked any biological connection to the twins
received them into his home and held them out as his natural children, this case
3
would, under this court’s holding in Nicholas H., supra, 28 Cal.4th 56,
undoubtedly have resulted in a determination that he met the statutory criteria for
being the presumed father of the twins. These legal principles apply with equal
force in this case, where Elisa, whom the county seeks to hold financially
accountable for support of the twins, meets the statutory criteria of a presumed
mother, a status that brings with it the benefits as well as the responsibilities of
parenthood. The flip side of a familiar adage comes to mind: What is sauce for
the gander is sauce for the goose.
KENNARD,
J.
4
See last page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Elisa B. v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 118 Cal.App.4th 966
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S125912Date Filed: August 22, 2005
__________________________________________________________________________________
Court:
SuperiorCounty: El Dorado
Judge: Gregory W. Dwyer, Commissioner
__________________________________________________________________________________
Attorneys for Appellant:
Hanke & Williams and Shelly L. Hanke for Petitioner.Liberty Counsel, Mathew D. Staver, Rena M. Lindevaldsen and Mary E. McAlister for Kristina Sica as
Amicus Curiae on behalf of Petitioner.
Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Petitioner.
__________________________________________________________________________________
Attorneys for Respondent:
No appearance for Respondent.Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, James M. Humes, Chief
Assistant Attorney General, Thomas R. Yanger, Assistant Attorney General, Frank S. Furtek, Mary
Dahlberg, Margarita Altamirano and Kara Read-Spangler, Deputy Attorneys General; Louis B. Green,
County Counsel, Edward L. Knapp, Chief Assistant County Counsel; Mary A. Roth; and May Jane
Hamilton for Real Party in Interest County of El Dorado.
National Center for Lesbian Rights, Shannon Minter and Courtney Joslin for Real Party in Interest Emily
B.
Valerie Ackerman and Shannan Wilber for National Center for Youth Law and Legal Services for Children
as Amici Curiae on behalf of Real Party in Interest Emily B.
Alice Bussiere for The Center for Children’s Rights at Whittier Law School, The Legal Aid Foundation of
Los Angeles, The National Center for Youth Law, The Youth Law Center and Joan Heifetz Hollinger and
the Children’s Advocacy Project, Boalt Hall as Amici Curiae on behalf of Real Party in Interest Emily B.
1
Page 2 – S125912 – counsel continued
Attorneys for Respondent:
Jennifer C. Pizer and Amber Garza for Children of Lesbians and Gays Everywhere, Equality California,
Family Matters, Family Pride Coalition, Growing Generations, Lambda Legal Defense and Education
Fund, the National Center for Lesbian Rights, Our Family Coalition, the Pop Luck Club and Southern
California Assisted Reproduction Attorneys as Amici Curiae on behalf of Real Party in Interest Emily B.
Debra Back Marley and Robert C. Fellmeth for Children’s Advocacy Institute as Amicus Curiae on behalf
of Real Party in Interest Emily B.
ACLU Foundation of Southern California, Clare Pastore, Christine Sun; ACLU Foundation of Northern
California, Alan Schlosser; ACLU Foundation of San Diego and Imperial Counties, Jordan Budd, Elvira
Cacciavillani; ACLU Foundation Lesbian and Gay Rights Project and James Esseks for the American Civil
Liberties Union of Southern California, the American Civil Liberties Union of Northern California, the
American Civil Liberties Union of San Diego and Imperial Counties and the American Civil Liberties
Union as Amici Curiae on behalf of Real Party in Interest Emily B.
Maxie Rheinheimer Stephens & Vrevich, Darin L. Wessel; Laura J. Maechtlen; and Vanessa H. Eisemann
for Tom Homann Law Association, Bay Area Lawyers for Individual Freedom, Lesbian and Gay Lawyers
Association of Los Angeles, and Sacramento Lawyers for the Equality of Gays and Lesbians as Amici
Curiae on behalf of Real Parties in Interest Emily B. and El Dorado County.
Donna Wickham Furth; Wilke, Fleury, Hoffelt, Gould & Birney and William A. Gould, Jr., for Northern
California Association of Counsel for Children, National Association of Counsel for Children and The
California Psychological Association as Amici Curiae on behalf of Minors.
Geragos & Geragos, Gregory R. Ellis; and Rebekah A. Frye for The Los Angeles County Bar Association,
The San Fernando Valley Bar Association and its Family Law Center, The Family Law Section of the
Beverly Hills Bar Association, The Bar Association of San Francisco, The Association of Certified Law
Specialists and Women Lawyers Association of Los Angeles as Amici Curiae on behalf of Minors.
Morrison & Foerster, Ruth N. Borenstein and Johnathan E. Mansfield for California NOW, Inc., and
California Women’s Law Center as Amici Curiae.
2
Counsel who argued in Supreme Court (not intended for publication with opinion):
Shelly L. HankeHanke & Williams
12437 Lewis Street, Suite 201
Garden Grove, CA 92840
(714) 750-5330
Kara Read-Spangler
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-0356
Courtney Joslin
National Center for Lesbian Rights
870 Market Street, Suite 370
San Frnacisco, CA 94102
(415) 392-6257
Mary Jane Hamilton
78 Coverted Bridge Road
Carmichael, CA 95608
(916) 487-9371
3
Date: | Docket Number: |
Mon, 08/22/2005 | S125912 |
1 | B., Elisa (Petitioner) Represented by Shelly Lynn Hanke Hanke & Williams 12437 Lewis St #201 Garden Grove, CA |
2 | Superior Court Of Eldorado County (Respondent) |
3 | B, Emily (Real Party in Interest) Represented by Shannon Minter Natl Ctr for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA |
4 | B, Emily (Real Party in Interest) Represented by Courtney Grant Joslin NCLR 870 Market Street, Suite 370 San Francisco, CA |
5 | Lockyer, Bill (Real Party in Interest) Represented by Kara Kathleen Read-Spangler Office of the Attorney General P O Box 944255 Sacramento, CA |
6 | County Of El Dorado (Real Party in Interest) Represented by Edward Lennon Knapp El Dorado County Counsel 330 FairLane Court Placerville, CA |
7 | County Of El Dorado (Real Party in Interest) Represented by Mary A. Roth Attorney at Law 235 Hearst Avenue San Francisco, CA |
8 | California State Association Of Counties (Amicus curiae) Represented by Jennifer Bacon Henning Litigation Counsel, C.S.A.C. 1100 K Street, Suite 101 Sacramento, CA |
9 | Northern California Association Of Counsel For Children (Amicus curiae) Represented by Donna Wickham Furth Attorney at Law 1333 Balboa St #1 San Francisco, CA |
10 | California Now, Inc. (Amicus curiae) Represented by Ruth Nathania Borenstein Morrison & Foerster LLP 425 Market St San Francisco, CA |
11 | California Womens Law Center (Amicus curiae) Represented by Ruth Nathania Borenstein Morrison & Foerster, LLP 425 Market Street San Francisco, CA |
12 | California Womens Law Center (Amicus curiae) Represented by Johnathan Edward Mansfield Morrison & Foerster, LLP 425 Market Street San Francisco, CA |
13 | Sica, Kristina (Amicus curiae) Represented by Mathew D. Staver Liberty Counsel 210 E. Palmetto Avenue Longwood, FL |
14 | Sica, Kristina (Amicus curiae) Represented by Rena M. Lindevaldsen Liberty Counsel 210 E. Palmetto Avenue Longwood, FL |
15 | Los Angeles County Bar Association (Amicus curiae) Represented by Gregory R. Ellis Geragos & Geragos 350 S. Grand Avenue, 39th Floor Los Angeles, CA |
16 | Children Of Lesbians & Gays Everywhere Et Al. (Amicus curiae) Represented by Jennifer Carol Pizer Lambda Legal Defense & Education Fund 3325 Wilshire Boulevard, Suite 1300 Los Angeles, CA |
17 | Childrens Advocacy Institute (Amicus curiae) Represented by Robert C. Fellmeth Univ San Diego Ctr Pub Int/School of Law 5998 Alcala Park San Diego, CA |
18 | Tom Homann Law Association (Amicus curiae) Represented by Darin Lee Wessel Maxie Rheinheimer et al,. LLP 555 S. Fifth Street, 31st Floor Los Angeles, CA |
19 | Sacramento Lawyers For The Equality Of Gays & Lesbians (Amicus curiae) Represented by Laura Jean Maechtlen c/o SAC LEGAL 1008 10th Sreet, No. 505 Sacramento, CA |
20 | Lesbian & Gay Lawyers Association Of Los Angeles (Amicus curiae) Represented by Vanessa Helene Eisemann c/o LGLA P. O. Box 480318 Los Angeles, CA |
21 | California Psychological Association (Amicus curiae) Represented by William Adolph Gould Wilke Fleury Hoffelt et al. 400 Capitol Mall, Sutie 2200 Sacramento, CA |
22 | National Association Of Counsel For Children (Amicus curiae) Represented by Donna Wickham Furth Attorney at Law 1333 Balboa Street, Suite 1 San Francisco, CA |
23 | Aclu Foundation Of Southern California, Inc. (Amicus curiae) Represented by Clare Pastore ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA |
24 | Aclu Foundation Of Southern California, Inc. (Amicus curiae) Represented by Clare Pastore ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA |
25 | Aclu Foundation Of San Diego & Imperial Counties, Inc. (Amicus curiae) Represented by Clare Pastore ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA |
26 | American Civil Liberties Union (Amicus curiae) Represented by Clare Pastore ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA |
27 | Bay Area Lawyers For Individual Freedom (Amicus curiae) Represented by Darin Lee Wessel Maxie Rheinheimer et al., LLP 555 S. Fifth Street, 31st Floor Los Angeles, CA |
28 | Center For Childrens Rights At Whittier Law School (Amicus curiae) Represented by Alice Bussiere Youth Law Center 417 Montgomery Street, Suite 900 San Francisco, CA |
29 | National Center For Youth Law (Amicus curiae) Represented by Alice Bussiere Youth Law Center 417 Montgomery Street, Suite 900 San Francisco, CA |
30 | Youth Law Center (Amicus curiae) Represented by Alice Bussiere Youth Law Center 417 Montgomery Street, Suite 900 San Francisco, CA |
31 | Hollinger, Joan Heifetz (Amicus curiae) Represented by Alice Bussiere Youth Law Center 417 Montgomery Street, Suite 900 San Francisco, CA |
32 | Childrens Advocacy Project, Boalt Hall (Amicus curiae) Represented by Alice Bussiere Youth Law Center 417 Montgomery Street, Suite 900 San Francisco, CA |
33 | San Fernando Valley Bar Association (Amicus curiae) Represented by Gregory R. Ellis Geragos & Geragos 350 S. Grand Avenue, 39th Floor Los Angeles, CA |
34 | Beverly Hills Bar Association (Amicus curiae) Represented by Gregory R. Ellis Geragos & Geragos 350 S. Grand Avenue, 39th Floor Los Angeles, CA |
35 | Association Of Certified Family Law Specialists (Amicus curiae) Represented by Gregory R. Ellis Geragos & Geragos 350 S. Grand Avenue, 39th Floor Los Angeles, CA |
36 | Bar Association Of San Francisco (Amicus curiae) Represented by Gregory R. Ellis Geragos & Geragos 350 S. Grand Avenue, 39th Floor Los Angeles, CA |
37 | Women Lawyers Association Of Los Angeles (Amicus curiae) Represented by Gregory R. Ellis Geragos & Geragos 350 S. Grand Avenue, 39th Floor Los Angeles, CA |
Disposition | |
Aug 22 2005 | Opinion: Reversed |
Dockets | |
Jun 28 2004 | Petition for review filed (in Sacramento) by the Attorney General of the State of California |
Jun 29 2004 | Record requested |
Jun 29 2004 | 2nd petition for review filed by counsel for RPI (Emily B.) |
Jun 30 2004 | Received Court of Appeal record one doghouse |
Jul 22 2004 | Received: Supplemental proof of service to petition for review |
Aug 27 2004 | Time extended to grant or deny review To September 27, 2004. |
Sep 1 2004 | Petition for review granted (civil case) George, C.J., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
Sep 1 2004 | Letter sent to: All counsel enclosing a copy of the grant order and the certification of interested entities and persons form. |
Sep 9 2004 | Certification of interested entities or persons filed by Shannon Mintor for RPI Emily B. |
Sep 14 2004 | Certification of interested entities or persons filed by Kara Read-Spangler, Deputy A.G. for Bill Lockyer as Attorney General |
Sep 15 2004 | Request for extension of time filed to 10-31-2004 (30 days) by Attorney General Bill Lockyer to file his Opening Brief on the Merits |
Sep 15 2004 | Certification of interested entities or persons filed by Shelly Lynn Hanke for Petitioner Elisa B. |
Sep 15 2004 | Request for extension of time filed to 10-31-2004 by RPI Emily B. to file the Opening Brief on the Merits |
Sep 17 2004 | Extension of time granted On application of Bill Lockyer as Attorney General and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including 10-31-2004. |
Sep 17 2004 | Extension of time granted On application of Real Party in Interest Emily B. and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including 10-31-2004. |
Oct 26 2004 | Request for extension of time filed by real party in interest Attorney General: requesting a 15-day extension to and including November 15, 2004 to file the opening brief on the merits. |
Oct 27 2004 | Extension of time granted To November 15, 2004 to file AG's Opening Brief on the Merits. |
Oct 27 2004 | Association of attorneys filed for: Mary A. Roth as counsel for RPI {County of El Dorado}. |
Oct 28 2004 | Request for extension of time filed by real party in interest Emily B.: requesting a 15-day extension to and including November 15, 2004 to file RPI's opening brief on the merits. |
Oct 28 2004 | Request for extension of time filed by counsel for real party in interest El Dorado County: requesting a 33-day extension to and including November 30, 2004 to file RPI's opening breif on the merits. |
Oct 28 2004 | Received: RPI's {El Dorado County} proof of service for notice of association of counsel. |
Oct 29 2004 | Notice of substitution of counsel El Dorado county Counsel in place of the Attorney General as counsel for RPI {El Dorado County}. |
Nov 1 2004 | Received: proof of service for request for ext. of time filed on 10-28-04 by RPI. |
Nov 3 2004 | Extension of time granted To November 15, 2004 to file RPI's {Emily B.,} Opening Brief on the Merits. |
Nov 3 2004 | Extension of time granted To November 30, 2004 to file RPI's {El Dorado County} opening brief on the merits. |
Nov 4 2004 | Opening brief on the merits filed Attorney General |
Nov 15 2004 | Request for extension of time filed by counsel for petitioner requesting a 30-day extension to and including December 30, 2004 to file petitioner's consolidated answer brief on the merits. |
Nov 15 2004 | Opening brief on the merits filed RPI ( Emily B. ). |
Nov 16 2004 | Extension of time granted To December 30, 2004 to file petitioner's consolidated answer brief on the merits. |
Nov 30 2004 | Request for extension of time filed RPI's {El Dorado County} requesting to Dec. 17, 2004 to file opening brief on the merits. |
Dec 3 2004 | Extension of time granted To and including Dec. 17, 2004 for real party in interest {El Dorado County} to file opening brief on the merits. |
Dec 8 2004 | Request for extension of time filed Petitioner ( Elisa Maria B.) to Jan. 18, 2005,to file one consolidated answer brief on the merits. |
Dec 13 2004 | Extension of time granted to Jan. 18, 2005 for petitioner to file one consolidated answer brief on the merits. |
Dec 17 2004 | Opening brief on the merits filed RPI ( County of El Dorado). |
Jan 18 2005 | Answer brief on the merits filed (CONSOLIDATED) by petitioner Elisa B. |
Jan 28 2005 | Request for extension of time filed by Mary A. Roth, counsel for RPI El Dorado County, for an additional 10 days to 2-17-2004, within which to file the Reply Brief on the Merits |
Feb 2 2005 | Extension of time granted RPI El Dorado County to and including February 17, 2005 to file the reply brief on the merits. |
Feb 7 2005 | Reply brief filed (case not yet fully briefed) by the Attorney General. |
Feb 8 2005 | Reply brief filed (case not yet fully briefed) by counsel for RPI Emily B. |
Feb 17 2005 | Reply brief filed (case fully briefed) RPI County of El Dorado |
Feb 23 2005 | Order filed Pursuant to the order filed in K.M. v. E.G. (S125643) on February 23, 2005, calendar preference is granted in the above entitled matter on the court's own motion. |
Mar 10 2005 | Received application to file Amicus Curiae Brief by California State Association of Counties in support of petitioners, State of Calfornia et al. |
Mar 11 2005 | Request for extension of time filed by California NOW and California Women's Law Center for (1) to file a single amicus curiae application and brief to be considered in all three cases and (2) for an an order extending time to April 8, 2005, to file amici's brief. (Consolidated filing with S125643 and S126945) Three originals received. |
Mar 15 2005 | Received application to file Amicus Curiae Brief Northern California Associationo f Counsel for Children and the National Association of Counsel for Children in support of the interests of the Children. Received separately one original application and brief. |
Mar 16 2005 | Permission to file amicus curiae brief granted California State Association of Counties et al. in support of petitioners State of California et al. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
Mar 16 2005 | Amicus curiae brief filed by California State Associationof Counties, et al., in support of petitioners State of California et al. |
Mar 16 2005 | Request for extension of time filed Joint Application of all parties for an extension of time until 20 days after the last amicus curiae is filed in any of the three cross-referenced cases under rule 29.1(f)2. |
Mar 22 2005 | Extension of time granted The Attorney General of the State of California and Real Party in Interest Emily B. are granted an extension of time to file a single consolidated answer to all amicus curiae briefs on or before April 28, 2005. |
Mar 25 2005 | Permission to file amicus curiae brief granted The application of Northern California Association of Counsel for Children and the National Association of Counsels for Children for permission to file an amicus curiae brief in support of the interests of the children is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005. |
Mar 25 2005 | Amicus curiae brief filed Northern California Association of Counsel for Children and the National Association of Counsels for Children in support of the interests of the children. |
Mar 25 2005 | Request for extension of time to file amicus curiae brief On application of amicus curiae California NOW, Inc. and California Women's Law Center and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief is extended to and including April 8, 2005. Amici's request to file a single amicus curiae application and brief to be considered in all three cases (S125643, S125912 and S126945) is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005. |
Mar 25 2005 | Application to appear as counsel pro hac vice granted The applications of Mathew D. Staver and Rena M. Lindevaldsen both of the State of Florida for admission to appear as counsel pro hac vice on behalf of petitioner Elisa B. is hereby granted. (See Cal. Rules of Court, rule 983.) |
Mar 25 2005 | Permission to file amicus curiae brief granted The application of Kristina Sica for permission to file an amicus curiae brief in support of petitioner Elisa B. is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005. The request of amicus curiae Kristina Sica for leave to appear and participate in oral argument is DENIED. |
Mar 25 2005 | Amicus curiae brief filed Kristina Sica in support of petitioner Elisa B. |
Apr 6 2005 | Received application to file Amicus Curiae Brief Children's Advocacy Institute in support of RPI {Emily B.,} Application and brief filed under case S126945 (One consoliddated brief for the 3 related cases). |
Apr 8 2005 | Received application to file Amicus Curiae Brief of Tom Homann Law Assoc., Bay Area Lawyers for Individual freedom, Lesbian and Gay Lawyers Assoc., of Los Angeles, and Sacramento Lawyers for the Equality of Gays and Lesbians in supoort of Emily B. & El Dorado in this matter {and in support of RPI, K.M in S125643, and Lisa Ann R. in S126945. |
Apr 8 2005 | Received application to file Amicus Curiae Brief California Now, Inc., and California Women's Law Center. |
Apr 8 2005 | Received application to file Amicus Curiae Brief The American Civil Liberties Union of Southern California, Civil Liberties Union of Northern California, Civil Liberties Union of San Diego and Imperial Counties and the American Civil Liberties union in support of RPI {Emily B.}. |
Apr 8 2005 | Received application to file Amicus Curiae Brief The Center for Children's Rights at Whittier Law School; The National Center for Youth Law; The Youth Law Center; Joan Heifetz Hollinger and The Children's Advocacy Project; Boalt Hall in support of RPI {Emily B.,} |
Apr 11 2005 | Received application to file Amicus Curiae Brief and brief of The Los Angeles County Bar Association (including its Family Law Section, Barristers, and Sexual Orientation Bias Committee), The San Fernando Valley Bar Association and its Family Law Section, The Family Law Section of the Beverly Hills Bar Association, The Bar Association of San Francisco, The Association of Certified Family Law Specialists, Women Lawyers Association of Los Angeles, in support of the interests of the children. CRC 40.1(b) |
Apr 12 2005 | Permission to file amicus curiae brief granted The application of American Civil Liberties Union of Southern California, et al. for permission to file amici curiae brief in support of Respondent and Real Party in Interest Lisa R. is hereby granted An answer thereto may be served and filed by any party on or before April 28, 2005. |
Apr 12 2005 | Permission to file amicus curiae brief granted The application of Children of Lesbians and Gays Everywhere, et al. for permission to file amici curiae brief in support of Real Party in Interest Emily B. is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005. |
Apr 12 2005 | Amicus curiae brief filed Children of Lesbians and Gays Everywhere, et al. in support of RPI Emily B. |
Apr 12 2005 | Permission to file amicus curiae brief granted The application of Children's Advocacy Institute for permission to file amici curiae brief in support of real party in interest (Emily B.) is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005. |
Apr 12 2005 | Amicus curiae brief filed by Children's Advocacy Institute in support of real party in interest (Emily B.) |
Apr 12 2005 | Permission to file amicus curiae brief granted The application of Tom Homann Law Association et al for permission to file amici curiae brief in support of real parties in interest (Emily B. and El Dorado County) is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005. |
Apr 12 2005 | Received application to file Amicus Curiae Brief and brief of Children of Lesbians and Gays Everywhere, et al., in support of RPI Emily B. CRC 40.1(b) -- Overnite Express |
Apr 12 2005 | Permission to file amicus curiae brief granted The application of American Civil Liberties Union of Southern California et al for permission to file amici curiae in support of real party in interest (Emily b.) is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005. |
Apr 12 2005 | Amicus curiae brief filed American Civil Liberties Union of Southern California et al. in support of real party in interest (Emily B.). |
Apr 12 2005 | Permission to file amicus curiae brief granted The application of Center for Children's Rights at Whittier Law School, et al. for permission to file amici curiae brief in support of real party in interest (Emily B.) is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005. |
Apr 12 2005 | Amicus curiae brief filed Center for Children's Rights at Whittier Law School, et al. in support of real party in interest (Emily B.). |
Apr 12 2005 | Permission to file amicus curiae brief granted The application of California NOW, Inc. and California Women's Law Center for permission to file amici curiae brief is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005. |
Apr 12 2005 | Amicus curiae brief filed California NOW, Inc. and California Women's Law Center. |
Apr 12 2005 | Permission to file amicus curiae brief granted The application of The Los Angeles County Bar Association (including its Family Law Section, Barristers, and Sexual Orientation Bias Committee), et al. for permission to file amici curiae brief in support of the interests of the children is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005. |
Apr 12 2005 | Amicus curiae brief filed by The Los Angeles County Bar Association (including its Family Law Section, Barristers, and Sexual Orientation Bias Committee), et al. in support of the interests of the children. |
Apr 14 2005 | Received: Letter from Wilke, Fleury, et al dated 4-14-2005, requesting the Court to accept letter as California Psychological Association's request for joinder in amici curiae brief by Northern California Association of Counsel for Children (NCACC) and National Association of Counsel for Children (NACC). (Received in Sacramento) |
Apr 15 2005 | Amicus curiae brief filed Tom Homann Law Association et al. in support of real parties in interest (Emily B. and Eldorado County) |
Apr 20 2005 | Order filed The request for joinder by the California Psychological Association ("CPA") to join in the amici curiae Northern California Association of Counsel for Children ("NCACC") and National Association of Counsel for Children ("NACC") is hereby granted. |
Apr 28 2005 | Response to amicus curiae brief filed by Real Party in Interest Emily B.'s Answer to Amicus Briefs |
May 3 2005 | Case ordered on calendar 5/24/05, 9am, S.F. |
May 11 2005 | Supplemental brief filed by the Attorney General and Real Party in Interest Emily B. |
May 12 2005 | Filed: Request of Real Party in Interest (Emily B.) to divide oral argument time. |
May 13 2005 | Filed: Letter from attorney Mary A. Roth dated 5/11/05 regarding time allotted for Oral Argument to RPI. |
May 16 2005 | Filed: Amended joint application to divide time - from counsel for RPI - Emily B. |
May 16 2005 | Request for Extended Media coverage Filed By The California Channel. (Live Broadcast). |
May 18 2005 | Request for Extended Media coverage Granted Request for extended media coverage, filed May 16, 2005, is granted, subject to the conditions set forth in rule 980, California Rules of Court. |
May 23 2005 | Request for Extended Media coverage Filed By Stephanie Mullen of the Associated Press. (Still Camera coverage} |
May 23 2005 | Order filed The request of counsel for Real Parites in Interest to allow three counsel to argue on behalf of Real Parties in Interest at oral argument is hereby granted. |
May 23 2005 | Order filed The request of Real Parties in Interest to allocate to Kara Read-Spangler 10 minutes, Mary Jane Hamilton 10 minutes and Courtney Joslin 10 minutes of Real Parties' in Interest 30-minute allotted time for oral argument is granted. |
May 23 2005 | Request for Extended Media coverage Granted Request for media coverage, filed May 23, 2005, is granted subject to the conditions set forth in rule 980, California Rules of Court. |
May 24 2005 | Cause argued and submitted |
Jun 8 2005 | Received: RPI Emily B.'s Application for Leave to file Supplemental Brief After Argument. -- Supplemental Brief submitted separately. |
Jun 13 2005 | Request Denied The application for leave to file supplemental briefing after argument, filed on June 8, 2005, is denied. |
Jun 13 2005 | Order filed The application for leave to file supplemental briefing after argument, filed on June 8, 2005, is denied. |
Aug 22 2005 | Opinion filed: Judgment reversed Opinion by Moreno, J. - Joined by George, C.J., Baxter, Werdegar, Chin, JJ. Concurring Opinion by: Kennard, J. |
Aug 26 2005 | Filed: Letter by the Attorney General dated 8-25-2005 requesting modifications to reflect corrections to the Court's opinion.. |
Sep 22 2005 | Remittitur issued (civil case) Certified copies sent to Third Appellate District |
Sep 27 2005 | Received: Receipt for remittitur from 3 DCA |
Briefs | |
Nov 4 2004 | Opening brief on the merits filed |
Nov 15 2004 | Opening brief on the merits filed |
Dec 17 2004 | Opening brief on the merits filed |
Jan 18 2005 | Answer brief on the merits filed |
Feb 7 2005 | Reply brief filed (case not yet fully briefed) |
Feb 8 2005 | Reply brief filed (case not yet fully briefed) |
Feb 17 2005 | Reply brief filed (case fully briefed) |
Mar 16 2005 | Amicus curiae brief filed |
Mar 25 2005 | Amicus curiae brief filed |
Mar 25 2005 | Amicus curiae brief filed |
Apr 12 2005 | Amicus curiae brief filed |
Apr 12 2005 | Amicus curiae brief filed |
Apr 12 2005 | Amicus curiae brief filed |
Apr 12 2005 | Amicus curiae brief filed |
Apr 12 2005 | Amicus curiae brief filed |
Apr 12 2005 | Amicus curiae brief filed |
Apr 15 2005 | Amicus curiae brief filed |
Apr 28 2005 | Response to amicus curiae brief filed |