Mcle Article: Emerging Issues in Three Parent Law
| Publication year | 2017 |
| Author | Denise Treviño |
Denise Treviño
Denise Treviño is the founder of Treviño Law, Inc. in Laguna Hills. She graduated from the University of Utah College of Law and has practiced in several states including California, Utah and Arizona. Ms. Treviño passionately engages the legal field. She has successfully litigated cases in criminal law and family law, and currently emphasizes her family law practice. She has served on the Solo and Small Sections Board in the Orange County Bar Association.
Check the end of this article for information on how to access 1 hour of Legal Specialization in Family Law and 1 hour of general self-study credits.
Family Code section 7612(c) is often referred to as the "three parent law." Technically, the name is a misnomer in that the statute allows the court to find more than two parents without limiting the number of parents a child may have. It was codified into law in January 2014 and states, "In an appropriate action, a court may find that more than two persons . . . are parents if the court finds that recognizing only two parents would be detrimental to the child." Detriment may be found after a consideration of all the relevant factors, including that the child's physical and psychological needs are being met by a person who has assumed the parenting role.
In the past, when more than two parents were involved, paternity or parentage focused on the persons who are most likely to commit to the role of a parent. "The courts have repeatedly held, in applying paternity presumptions, [ ] the extant father-child relationship is to be preserved at the cost of biological ties."1 That preference continues to be important, allowing the person who not only cares for the child but is also willing to financially support the child to be acknowledged by the court as the child's legal parent.
Although section 7612(c) expanded the number of parents a person could have, it did not change the basic framework as to how a person is legally determined to be a parent. The Uniform Parentage Act (Family Code sections 7600-7730) defines parentage. For women, the natural mother is the person giving birth.2 For men and non-birthing women, the test is more complicated. If the couple is married, there is a presumption under Family Code section 7640 that the second parent is the child's parent if the parents were married and living together at the time of conception and the second parent is neither impotent nor sterile. The only way to overcome the marriage presumption is for the mother, spouse, presumed parent, or the child to request an order for blood tests through the court within two years of the child's birth. If the blood tests confirm that someone other than the husband is the presumed father, then there is an opportunity to challenge parentage.
Other than the marriage presumption, there are several ways in which a person can qualify as a presumed parent. One option requires the parents to sign a Voluntary Declaration of Paternity. This is usually signed in the hospital after the child is born. It is witnessed by hospital staff and filed with the Department of Child Support Services. Once is has been filed, it "shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction."3
Three options to qualify as a presumed parent involve marriage or an attempted marriage and contemplate circumstances in which the parents are developing a family unit. The final parentage qualification statute is for parents who have neither married nor attempted to marry. The only way that a person who does not qualify under the other parentage provisions can be determined to be a parent is by receiving the child into his or her home and openly holding the child out as his or her natural child.4 In most circumstances, for a person to receive a child into his or her home, he or she needs the consent and cooperation of a parent. Thus, if married parents wish to exclude the biological parent from being involved in the child's life, they can prevent him or her from receiving the child into their home.
Family Code section 7612(c) was enacted in response to the juvenile dependency case In re M.C.,195 Cal. App. 4th 197 (2011). In re M.C. involved a minor child who was born during a marriage between two women—Melissa V. and Irene V.—but was conceived before the marriage as a result of a relationship between Melissa and her then boyfriend, Jesus. The child had three alleged parents: the biological mother, the presumed mother by way of being married to the mother, and the presumed father, who promptly committed to the care of the minor child but was prevented from substantial involvement by the biological mother.
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On the birth certificate, only Melissa was listed as the parent. At that time, Jesus did not know where Melissa and M.C. lived and did not attempt to contact them through known family members. Although Irene and Melissa eventually broke up, they lived together for the first four weeks of M.C.'s life. After their split, Irene filed for joint legal and physical custody. In June of 2009, Melissa contacted Jesus, who lived in Oklahoma, requesting financial help. He sent her money on a few occasions before Melissa was arrested as an accessory to the attempted murder of Irene and M.C. was taken into protective custody.
The attempted murder occurred in September of 2009, when Melissa and her boyfriend, Jose, saw Irene. In an attempt to get Irene to drop the custody battle, Jose befriended her on a bus and later stabbed her. Melissa was charged as an accessory to murder. A petition filed in juvenile court alleged that both Melissa and Irene had a history of domestic violence and mentioned Melissa's incarceration.
A report made by the Department of Child and Family Services stated that Irene did not have suitable living conditions. She did not live in her own place, was sleeping on a couch, and there was no refrigerator present. Furthermore, Jose, who had stabbed Irene, was still at large, making her situation a dangerous environment for the baby. Jesus, on the other hand, lived in Oklahoma with his fiancee, had a stable job and environment, and was expecting another child...
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