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A Child Can Have Three Parents

Posted By Anthony P. Azemika, Esq.   |   Comments (0)
Family Law, Divorce, Child Custody & Visitation, Legal Cases,



A California Court of Appeals has ruled that a Trial Court was wrong in finding that a child would suffer no detriment if another man was not recognized as the child’s third parent under California Family Code Section 7612(c).

In the case of Martinez vs. Vaziri (April 8, 2016), Petitioner and Mother were in a long-term relationship. During their relationship, Mother became pregnant. Believing that Petitioner’s half-brother (Father) was the expected child’s biological father, Mother filed a paternity action, in which the paternity testing established that Father was the biological father.

Father, however, abandoned Mother during her pregnancy. Meanwhile, despite knowing that his half-brother was the biological dad, Petitioner went with Mother to prenatal appointments, parenting and birthing classes, and planned to raise the expected child as his own child. When the child was born in November of 2012, Petitioner cut the umbilical cord. He lived with Mother and Child during Child’s first six months of life, and helped care for Child in every way.

In May of 2013, Petitioner moved to his own apartment, but would still see Child two days and three nights of every week. He held Child out as his own child to everyone but a few friends and family members who knew that Father was Child’s biological dad. Meanwhile, Father spent a total of seven to eight hours with Child and the bulk of his time in jail.

In November of 2013, Petitioner, apparently high on drugs, spanked one year-old Child, causing severe bruising. Mother called her counselor, who notified CPS. CPS removed Child from Mother’s care for several days, investigated the incident, and determined that Petitioner had been under the influence of illegal substances when he spanked Child. CPS agreed to return Child to Mother’s care under a case plan that prohibited Petitioner from having any contact with Child for six months. At the end of that time, Petitioner was allowed five to twenty hours of visitation with Child each week, and he and Mother worked with parenting coach and therapist for help in raising Child.

Petitioner subsequently filed a petition to establish his paternity of Child under California Family Code Section 7611(d) [presumed father accepts child into his home and openly holds child out as his] and California Family Code Section 7612(c) [Trial Court may determine that child has more than two parents if recognizing only two parents would be detrimental to child]. At the hearing on August 20, 2014, Mother testified that Petitioner acted as Child’s father, Child refers to Petitioner as her father, and Petitioner provided support for Child. Mother expressed concern that permitting Petitioner to be designated as Child’s third parent might detrimentally affect her (Mother’s) custody rights, but stated that the spanking incident was caused by Petitioner’s substance abuse relapse, which had not recurred. Mother, however, stated that failing to designate Petitioner as Child’s third parent would not be detrimental because she would still let Petitioner have a relationship with Child. Petitioner testified about his parental role, admitted that he had relapsed when the spanking incident occurred, and emphasized his commitment to Child’s well-being. Petitioner asserted that it would be detrimental to Child if her relationship with him was not protected. Father did not testify.

When hearing concluded, Trial Court found that Petitioner qualified as a presumed father under California Family Code Section 7611(d), but his presumption of fatherhood had been rebutted by Father’s paternity judgment. Trial Court also found that it would not be detrimental to Child if Trial Court failed to designate Petitioner as Child’s third parent because Child had already been removed from a stable placement with Petitioner (either when CPS removed her or when Petitioner moved to his own place). Accordingly, Trial Court denied Petitioner’s petition.

Claiming that Trial Court erred in interpreting Family Code §7612(c), Petitioner appealed. Now, California Court of Appeals has reversed Trial Court’s decision. The Appellate Court has ruled that (1) Family Code Section 7612(c) requires Trial Court to consider all relevant factors, including the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and psychological needs for care and affection and has assumed parental role for a substantial period of time; (2) Trial Court erred by interpreting “stable placement” to mean the child’s living situation; (3) “stable placement” should be interpreted in relation to the relationship established between the child and the proposed third parent (person who has fulfilled the child’s needs for care and affections for a considerable period of time); and (4) Trial Court’s finding that Father’s paternity judgment trumped Petitioner’s presumed parent claim was erroneously based on its improper interpretation of Family Code Section 7612(c) and failure to consider all relevant factors. Court of Appeals has reversed Trial Court’s rebuttal finding and its order denying Petitioner’s request to be deemed Child’s third parent. It has also sent the case back to Trial Court to reconsider the issue of detriment and of rebuttal.