Mom can be 'Dad,' California court says.

A former partner in a lesbian relationship can use the presumed-father provision of California's Uniform Parentage Act (UPA) to establish legal parentage, a state appeals court has ruled. But that holding was tempered by the court's decision to void a prebirth judgment declaring both partners to be the parents of the child. (Kristine Renee H. v. Lisa Ann R., 16Cal.Rpm.3d 123 (Ct. App. 2004).)

The decision creates a dramatic split with other California appeals courts that have recently used the UPA to address parentage issues in similar cases involving same-sex relationships.

Kristine Renee H. and Lisa Ann R. were in a long-term relationship when they arranged for Kristine to be artificially inseminated. A month before their daughter was born, Kristine and Lisa sought and received a stipulated judgment from a family court, establishing parental rights for both women.

The couple split up two years later, and Kristines sought to vacate the judgment and terminate Lisa's status as a legal parent. The family court denied the motion and upheld the judgment, setting the matter for a custody and visitation hearing. When Kristine appealed, the appellate court stayed the custody and visitation proceedings but asked her to address several issues, including the application of the UPA.

Although the court found the pre-birth judgment to be invalid, it determined that Lisa could assert her parental rights under the UPA.

"A determination of parentage cannot rest simply on the parties' agreement," Justice Walter Croskey wrote for the court. "Rather, because the partner did not adopt the child, the sole basis upon which the family court could determine parentage is under the [UPA]. Therefore, the judgment based on the parties' stipulation was in excess of the family court's jurisdiction and of no legal effect."

The question of whether a natural mother's former same-sex partner can establish parentage under the act was previously considered in Elisa B. v. Superior Court, in which the plaintiff had agreed to provide financial support for her former partner's twins, who were conceived while the couple was still together. When Elisa eventually stopped sending money, her partner sought to have her declared a parent under the UPA and therefore responsible for child support. Reversing the trial court, the appellate court found that Elisa was not a parent under the act. (13 Cal. Rptr. 3d 494 (Ct. App. 2004).)

"Our conclusion on this question differs from the one reached by the Elisa B. court," Croskey wrote. "We conclude that the act does provide a basis upon which the former partner can establish parentage. While such a conclusion under the act may not be a result that the legislature expressly contemplated, the act does mandate that we read the provisions in a gender-neutral manner, and that mandate compels our conclusion."

The court noted that the so-called presumed-father provision of the act, "when read in a gender-neutral manner, provides that a woman is presumed to be a parent of a child if'[s]he receives the child into [her] home and openly holds out the child as h[er] natural child.' We see no prohibition in the act that prevents us from concluding that a child has two parents of the same sex, especially here when no one other than the partner is vying to become the child's second parent."

"It is the first parentage case--we had one adoption case--that treats children of same-sex couples exactly the same way it treats children of unmarried opposite-sex couples," said Leslie Ellen Shear of Encino, California, who represented Lisa. "That's a huge victory, and we are very proud of that and very excited about what that means for California's children."

But Honey Kessler Amado of Beverly Hills, who represented Kristine, said the court overreached in its application of the act.

"This presumption that your partner, a nonbiological mother, can claim to be a presumed mother reads the word 'natural'--which means biological or adopted in the context of the statute--completely out of the UPA," she said. "In general rules of statutory construction, courts are not free to read a word out of a statute and just ignore it."

The court's reading of the act does not take into account that the state legislature has already created ways--such as adoption and registered domestic partnerships--for one member of a same-sex couple to become a parent of his or her partner's children, Amado said,

"There is case law that has indicated that biology will not defeat a claim of presumed parentage," she said, "But all of those cases have arisen in the area of dependency, where the nonbiological person seeking to be declared the presumed parent was not competing against anybody. So the outcome for the child was either to confirm rights for this person who has acted as a parent, or to leave the child with no parent and put him into a public system."

The court's interpretation of presumed parentage is at odds with Elisa B., but Shear noted that Elisa B. is inconsistent with other recent decisions by California courts, such as In re Jesusa V. and Karen C. v. Leticia C. (10 Cal. Rptr. 3d 205 (2004); 124 Cal. Rptr 2d 677 (Ct. App. 2002).)

"Karen C. says that you must interpret the Uniform Parentage Act and the other California parentage laws in a gender-neutral fashion," she said. "Jesusa V. says that where you have two presumed parents, one of whom is also the biological parent, biology is not necessarily the tie-breaker, and that the parent-child relationship can be established by conduct as well as by biology. And where there are competing parents, the court must decide on a case-by-case basis, basically using a best-interest test."

Kristine Renee H. also breaks ranks with K.M. v. E.G., a May ruling by a different California appeals court. (13 Cal. Rptr. 3d 136 (Ct. App. 2004); see Sara Hoffman Jurand, State Appeals Courts Focus on Intent in Egg, Sperm Donor Cases, TRIAL, Aug. 2004, at 78.) In K.M., a woman who donated her eggs so that her lesbian partner could bear a child through in vitro fertilization tried to establish parental rights after the couple's relationship ended. The court found that she did not qualify as a parent under the UPA.

Attorneys in both K.M. and Elisa B. have petitioned for review. Kristine plans to do the same on the issue of presumed parenthood, and Lisa might, as well.

"We are still considering the possibility," Shear said. "Being a test case is not a good thing lot the real family, but ideally, for the development of the law it would be helpful for the supreme court to see all three factual permutations: to see the child-support case [Elisa B.], to see the case where one partner was in fact the genetic mother and the other mother was the gestational mother [K. M.], and to see a case where a stipulated judgment was entered [Kristine]."