Page 1
Court of Appeal:
Ex-Partner May Seek Visitation Over Parents’ Objection
Opinion Says Law Has Expansive View of Who Qualifies as Parent Entitled to Continuing Relationship
By Kimber Cooley, associate editor
Div. Three of the First District’s Court of Appeal has held that the former romantic partner of a mother may be entitled to pendente lite visitation upon a preliminary showing of the existence of a parental relationship with the child and a court finding that it is in the best interest of the minor, even over the objections of both legal parents.
Petitioning for visitation was Bobby Feehan, who began a relationship with Lauren Seto while Seto was pregnant and in a registered domestic partnership with Jude Guide. After the birth of the child, identified as L.S., Guide adopted him.
Feehan alleges that he lived together with Seto and L.S. for three years, sharing in daily childcare duties such as bathing, dressing, sleep training, and toilet training.
After her romantic relationship with Feehan ended, Seto declined to allow Feehan access to L.S.
Feehan filed a petition in court seeking a determination as to parentage and requesting visitation with L.S. during the pendency of the matter. Guide and Seto opposed the motion, arguing that Feehan only ever acted as a romantic partner of Seto who sometimes assisted with childcare.
The parents assert that the Uniform Parentage Act, codified at Family Code §7600 et seq. (“UFA”), precludes a court from ordering visitation to Feehan. Sec. 7604 provides:
“A court may order pendente lite relief consisting of a custody or visitation order…if the court finds both of the following:
“(a) A parent and child relationship exists pursuant to Section 7540 or 7541.
“(b) The custody or visitation order would be in the best interest of the child.”
Sections 7540 and 7541, in turn, provide that a baby born to spouses who cohabitated at the time of conception and birth is presumed to be the child of the marriage unless there is evidence to dispute the biological parentage.
Petition Denied
On June 14, 2024, Alameda County Superior Court Judge Maria Morga denied the request for visitation, finding that Feehan was not entitled to it under §7604.
Feehan filed a petition for writ of mandate, challenging Morga’s order and arguing that §3022—which provides that “[t]he court may, during the pendency of a proceeding or at any time thereafter, make an order for the custody of a child during minority that seems necessary or proper”—and confers on the court equitable authority to order the requested visitation.
Justice Ioana Petrou authored the opinion, filed Friday, directing issuance of a writ of mandate. Petrou said:
“[W]e conclude trial courts have discretion…to enter temporary visitation orders if the requesting party has made a preliminary showing that [he or she is] a presumed parent and the order is found to be in the best interests of the child. Because the trial court concluded it lacked authority to grant Feehan’s request for pendente lite custody and visitation under the Family Code, we remand for the trial court to consider those issues in the first instance, namely, to determine whether Feehan has made a preliminary showing that [he is] a presumed parent and, if so, whether visitation is in the best interests of the child.”
Presiding Justice Alison M. Tucher and Justice Carin T. Fujisaki joined in the opinion.
Broad Authority
Petrou cited the catch-all provision found at §3022 and wrote that “[t]he statutory scheme…clearly emphasizes the broad authority of courts to enter custody and visitation orders during the pendency of a proceeding based on the best interest of the child, with an aim toward preserving the child-parent relationship.”
The jurist pointed to the 1981 First District case of Gadbois v. Superior Court as providing guidance. The case involved a man, who was not married to the mother of the child in question, petitioning for visitation during the pendency of the court hearings to determine whether he was the child’s biological father.
The court, in an opinion by Acting Presiding Justice James B. Scott (now deceased), held that “[a]lthough we can find no specific authorization for a pendente lite visitation order in the Uniform Parentage Act…, we also find no bar to pendente lite visitation.”
Subsequent Enactment
Seto and Guide argue that §7604—enacted after the Gadbois decision—restricts the court’s authority in connection with granting pendente lite visitation by requiring courts to first find that a “parent and child relationship exists pursuant to Section 7540 or 7541” and Feehan’s relationship with L.S. does not qualify.
Unpersuaded, Petrou remarked:
“Here, section 7604 states a court ‘may order pendente lite relief’ if it makes certain findings. The statute does not require such relief. Nor does it prohibit the court from ordering such relief in other situations. Seto and Guide’s interpretation would require us to add the word ‘only’ between ‘may’ and ‘order’….”
She added:
“Seto’s and Guide’s interpretation of section 7604 runs counter to the Legislature’s repeated efforts to recognize and expand rights for different family structures and parent-child relationships. Under their interpretation, only spouses who cohabited at the time of conception and birth or biologically related individuals—i.e., those demonstrating a parent-child relationship under sections 7540 or 7541—would qualify for temporary visitation….Allowing temporary visitation for only one subset…creates a hierarchy in which the relationships between children and certain ‘natural parents’ are given greater protections—e.g., visitation to support those relationship—than others. We cannot conclude the statutory framework or Legislative history supports such an interpretation.”
She rejected an argument that “the Legislature was presumably aware of Gadbois when it enacted section 7604 and declined to provide for broader pendente lite visitation,” saying that if the legislative body intended to statutorily bar the relief granted by the Gadbois court, it would have done so explicitly.
Legislative History
The justice opined that the legislative history of the UPA supports broad interpretations of familial relationships.
“The framework of the UPA…does not suggest section 7604 was intended to be the exclusive authority for allowing courts to issue temporary visitation orders,” she wrote.
Petrou quoted the Senate commentary on the UPA as saying:
“Legal parenthood can be established in a number of different ways. Under the Family Code, a person is conclusively presumed to be the parent of a child if he or she was married to and cohabitating with the child’s mother, except as specified. A person who receives a child into his or her home and holds the child out as his or her own is also presumed a parent of the child.”
She continued:
“The Legislative history…indicates this provision—which subsequently was rescinded and reenacted as section 7604—was designed to clarify that courts could consider ordering more expansive pendente lite visitation…..Nothing in the legislative history suggests the statu[t]e was designed to eliminate or otherwise reduce any other visitation rights.”
The case is Feehan v. Superior Court of Alameda County (Seto), 2024 S.O.S. 3213.
Copyright 2024, Metropolitan News Company