Non-Biological ‘Father’ May Be Awarded Parental Rights

Friday, June 7, 2002

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Non-Biological ‘Father’ May Be Awarded Parental Rights—S.C.

From Staff and Wire Service Reports

A man who raises a child as his own may be granted parental rights even if he is not a biological parent and the mother objects, the state Supreme Court ruled yesterday.

In a unanimous decision, the justices concluded that an Alameda Superior Court judge “acted well within [her] discretion” in relying on a statutory presumption of fatherhood, even in the face of an admission that the man was not the child’s biological father.

The high court overturned a contrary ruling by the First District Court of Appeal, which held that the man’s admission that he was not the biological father overcame the statutory presumption.

Judge Julia Span awarded presumed father status and temporary custody of 6-year-old Nicholas H., as the court identified him, to Thomas G.. The Union City resident petitioned to be declared the child’s father based on their prior relationship and the mother’s history of drug use, violence, incarceration for minor offenses, and homelessness.

In his petition, he explained that he and the boy’s mother lived together for 2 ﬁ years, beginning three months before Nicholas was born, then separated for a year before reconciling and living together for another eight months. The mother, Kimberly H., often prevented him from staying in contact with Nicholas and violently attacked him during a visit Thomas G.’s mother in Lakewood at Christmas 1999, he said.

Assault Charges

As a result of that attack, Kimberly H. was charged with assault and jailed. With the child’s biological father not involved and apparently uninterested, Thomas G. took the child to live with him in in the Bay Area.

Kimberly H. responded that Thomas G. had been violent towards her—a warrant was issued after he failed to complete an anger management class that he was required to take after an earlier arrest—and that the two of them often disagreed on how to raise the child. With each being opposed to the release of the child to the other, the Union City police placed Nicholas in the custody of the county Social Services Agency.

Thomas G. sought paternal rights under Family Code Sec. 7611(d), which creates a presumption of paternity when a man “receives the child into his home and openly holds out the child as his natural child.”

The county counsel opposed the petition, arguing that Thomas G.’s admission that he was not Nicholas’ biological father rebutted the presumption. The argument was based on Sec. 7612(a), which provides that any presumption under Sec. 7611 “is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.”

Statutory Language

The trial judge sided with the petitioner, saying the alternative would be to leave the child fatherless. But the Court of Appeal reversed, saying it was “not free to ignore the statute, which expressly states that the section 7611(d) presumption is rebutted by clear and convincing evidence that the presumed father is not the child’s natural father.”

But Justice Janice Rogers Brown, writing for the high court, said the Court of Appeal decision was “harsh” and analytically flawed. The lower court justices, she suggested, had overlooked the statute’s “in an appropriate action” language.

A case in which the petitioner has had a close and lasting relationship with the child and no other man seeks to exercise paternal responsibility is not “an appropriate action” in which to deny presumed father status based solely on the lack of a biological tie, Brown insisted.

Brown said the ruling was a narrow one and lawyers agreed.

“What the court said is that, to the extent that people volunteer and assume the role of parent, their rights should be acknowledged,” Nicholas’ court-appointed attorney, Francia M. Walker of Davis, said. “It’s better for children to have fathers than not to have fathers — the ones that tuck them in at night and take them to ballgames.”

The decision did not address circumstances in which the biological father and another man are competing for status of legal father. The court previously has ruled that, depending on a variety of circumstances including the relationship between the child and parental figure, biological fathers are not automatically entitled to be legal fathers.

Now that the Supreme Court has recognized Thomas G. as the legal father, he will seek full legal custody of the child, his attorney said. Nicholas has been living with Thomas G. while the case proceeds through the courts.

But the mother’s attorney, Sheri Cohen of Sausalito, said her client will seek custody of the child as well.

Cohen said the court wrongly assumed that Thomas G. had established himself as a parental figure. Cohen said, for example, that the couple separated several times and when Nicholas was living with his mother, Thomas G. made no effort to financially support the boy.

“We wanted the court to elaborate more on how you establish yourself as a parental figure. They didn’t do that,” Cohen said.

The case is In re Nicholas H., 02 S.O.S. 2814.