Opinion
D078199
12-17-2021
A.W., Plaintiff and Respondent, v. S.S., Defendant and Respondent; G.S., Real Party in Interest and Appellant.
Bickford Blado & Botros and Andrew J. Botros for Real Party in Interest and Appellant. S.S., in pro. per., for Defendant and Respondent. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 19FL006309E, Sharon L. Kalemkiarian, Judge. Affirmed.
Bickford Blado & Botros and Andrew J. Botros for Real Party in Interest and Appellant.
S.S., in pro. per., for Defendant and Respondent.
No appearance by Plaintiff and Respondent.
DATO, J.
As social norms have evolved, the traditional family (husband and wife, living with their children) has become less common. Divorce, nonmarital cohabitation, same-sex marriage, and the increasing number of parents raising children alone all contribute to the emergence of alternative families. Reflecting this, Family Code section 7612, subdivision (c) provides that" [i]n an appropriate action, a court may find that more than two persons with a claim to parentage . . . are parents if the court finds that recognizing only two parents would be detrimental to the child."
(Quinn, Mom, Mommy & Daddy and Daddy, Dad & Mommy: Assisted Reproductive Technologies & the Evolving Legal Recognition of Tri-Parenting (2018) 31 J. Am. Acad. Matrimonial Law. 175, 202-203.)
Undesignated statutory references are to the Family Code.
In this case, S.S. (Mother) conceived a child (Child) with A. W. (Bio-Father) during an extramarital affair. Wife hid the pregnancy from her husband, G.S. (Stepfather), for the first year of Child's life as she then lived mostly with Bio-Father. Nevertheless, their marriage remained intact. When Stepfather learned about Child, he and Mother reconciled. Since then, they have lived together with Child, who is now three years old.
The issue the family court had to grapple with is not fatherhood-both Bio-Father and Stepfather are presumed fathers under section 7611-but parentage: should Child have three parents or two? After conducting a trial, the family court determined that Bio-Father is Child's legal father. It went on to deny Stepfather's request to be named an additional parent after it determined that having only two parents would not be detrimental to Child.
On appeal, Stepfather does not challenge Bio-Father's status as legal father. Rather, he contends the court abused its discretion in not determining he is a third parent under section 7612. Specifically, Stepfather claims the court made a "critical error" by not considering that if Mother predeceases him or should they divorce, as a stepparent he would have "at best, an extraordinarily limited right of access" to Child which could "destroy[]" their bond.
We agree with the family court's assessment that "this is a very difficult situation" because all three adults love Child, who is bonded to each of them. But section 7612, subdivision (c) provides that a court may recognize more than two parents only in rare cases where detriment to the child-that is, removal from a stable, healthy relationship-would otherwise result. Harm from speculative future detriment, which is all Stepfather points to, is insufficient. (In re Donovan L. (2016) 244 Cal.App.4th 1075, 1093 (Donovan L.).) Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The trial was unreported. The factual background is drawn from the settled statement and certain court filings, construed in the light most favorable to the prevailing party. (See McMullen v. Saunders (1956) 138 Cal.App.2d554, 555; Pacesetter Homes, Inc. v. Brodkin (1970) 5 Cal.App.3d 206, 209.)
Mother and Stepfather have been married to each other for about 12 years. During the marriage, Mother had an affair with Bio-Father and became pregnant with Child. DNA analysis established that Bio-Father is Child's biological father.
Child was born in 2018. Bio-Father was present at her birth and holds her out as his daughter. He and Mother lived with Child for about the first year of Child's life. He has a loving relationship with Child, and she has bonded with him.
Through no fault of his own, Stepfather was not part of Child's life until she was one year old because Mother concealed her from him. But when informed, he and Mother reconciled and resumed living together (with Child). Stepfather refers to Child as his "adopted daughter." Together with Mother, he cares for Child on a daily basis and loves her very much. According to Mother, they are "a very happy and stable family." They have also "accepted" Bio-Father as part of Child's life, even giving him a key and an "open invitation" to their home.
In May 2019, asserting that Mother had "revoked [his] access" to Child, Bio-Father filed a petition to establish paternal relationship, naming only Mother as respondent. In an accompanying declaration, he asserted that Child "has been [his] entire world." In response, Mother asked the court to determine that Stepfather is Child's father, or alternatively "a finding of two fathers" under section 7612.
After joining Stepfather as a party to the proceedings, the court conducted a trial limited to parentage issues. Mother, Stepfather, and Bio-Father each testified.
Although Mother and Stepfather were self-represented, Stepfather is an attorney.
There was no request for a statement of decision; nevertheless, the court prepared a judgment containing certain findings and legal conclusions. The court noted all three adults love Child, who was "bonded to all [of] them to a significant extent." The court determined that Stepfather is a presumed parent under section 7611, subdivision (a), and Bio-Father is a presumed parent under section 7611, subdivision (d). Stating that Stepfather can "love [Child] and be there for her as a stepfather," the court concluded that "recognizing only two parents would not be detrimental" to Child. After "weighing both sides," the court issued a judgment stating Bio-Father is the "legal father" and Stepfather "will not be a third parent" under section 7612, subdivision (c). Mother and Stepfather appeal.
Under subdivision (a) of section 7611, a person is presumed to be the natural parent of a child if the child was born during that person's marriage to the natural mother. Under subdivision (d), a person who receives the child into his home and openly hold out the child as their natural child is presumed to be a natural parent.
Stepfather filed an opening brief, to which Mother has joined. Although no respondent's brief was filed, appellants still bear the burden of showing prejudicial error. (See Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1192, fn. 7; Cal. Rules of Court, rule 8.220(a)(2).)
DISCUSSION
Before the enactment of section 7612, subdivision (c), courts were prohibited from recognizing more than two parents. (See In re M.C. (2011) 195 Cal.App.4th 197, 214.) In cases like this one, involving competing presumptions under section 7611, the court was required to identify" 'the presumption which on the facts is founded on the weightier considerations of policy and logic'" (In re M.C, at p. 214.)
This changed in 2014 when the Legislature enacted subdivision (c) of section 7612. In "an appropriate action," a court may now recognize more than two claims to parentage if not doing so would be detrimental to the child:
"(c) In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage." (§ 7612, subd. (c), as amended by Stats. 2013, ch. 510, § 4.) As this court explained in Donovan L., the Legislature intended subdivision (c) of section 7612 "to be narrow in scope and to apply only in 'rare cases'" where necessary to protect the child from the" 'devastating psychological and emotional impact'" resulting from '[s]eparating [the] child from a parent.'" (Donovan L., supra, 244 Cal.App.4th at pp. 1090-1091.) More recently in MM. v. D.V. (2021) 66 Cal.App.5th733 (MM.), we emphasized that "the ultimate focus . . . must be on whether it would be detrimental to the child to have only two parents, not on whether it is in the putative parent's interest to obtain third parent status." (Id. at p. 746.) "The question is not whether it would be detrimental to the child if a third parent was added, but rather whether it would be detrimental to the child to have only two parents." (Ibid.) Thus, it is not enough that the family court may find some benefit to third-parent status; the court must find the failure to grant such status would itself be detrimental to the child.
Here, Stepfather's marriage with Mother results in his ongoing daily relationship with Child. The family court aptly noted that as a stepparent living with them both, he can love and care for Child, regardless of whether he is deemed a third parent. In the terms of section 7612, there is no detriment to Child from not naming Stepfather as a third parent because his current status in the family already results in Child having a stable, healthy relationship with him.
Stepfather contends, however, that the court "made a critical error because it did not consider" that his stepparent relationship "could disappear" if Mother predeceases him or they divorce. Because in either event he would have "no right [to] custody" and only limited visitation, he claims not making him a third parent is detrimental to Child now.
But the record contains no evidence to suggest, much less support a finding that Mother is likely to predecease Stepfather. Nor is there evidence they will likely divorce. To the contrary, their reconciliation and the thoughtful way they have handled the addition of Child to their relationship attests to the strength of their marriage, not its weakness. And perhaps more to the point, Mother told the family court that she, Stepfather, and Child are "a very happy and stable family."
Ultimately, Stepfather candidly concedes his argument is based on "pure speculation." We agree, and that is why the family court properly found it to be untenable. The most that can be said is that if Mother predeceases Stepfather or if they divorce during Child's minority, then it may be detrimental to Child to not have Stepfather be a third parent. Speculation like this" 'is not evidence, less still substantial evidence.'" (Wise v. DLA Piper LLP (US) (2013) 220 Cal.App.4th 1180, 1188.)
Moreover, Stepfather's argument, if accepted, would apply to every stepparent case, since it is always possible that one spouse will predecease the other and/or that a marriage will end in divorce. Evidence of speculative future detriment is insufficient. Such an interpretation would apply" 'far beyond the "rare case" envisioned by the Legislature.'" (M.M., supra, 66 Cal.App.5that p. 748; see also Donovan, supra, 244 Cal.App.4that p. 1093.)
In a related argument, Stepfather also contends the court abused its discretion by improperly "focus[ing] on the length[] and not the strength, of the bond" between himself and Child. This argument is directed to a portion of the judgment stating, "[I]t is critical to note that [Stepfather] was not involved, through not [sic] fault of his own as [Child's] existence was hid from him, in [Child's] life until [she] was around 12 months old." Citing C.A. v. C.P. (2018) 29 Cal.App.5th 27 (C.A), Stepfather maintains it was "not 'critical' at all" because the quality of the bond, not its length, is the relevant criteria.
Section 7612, subdivision (c) is intended to prevent the" 'devastating psychological and emotional impact'" from separating a child from a parent. (Donovan L., supra, 244 Cal.App.4that pp. 1090-1091.) The detriment envisioned by the statute occurs from disruption of the type of successful parental relationship that necessarily develops over time. The crucial point here is that a failure to recognize Stepfather as a third parent disrupts nothing.
Some of the underlying facts in C.A. are similar to those here. In C.A., the wife had an extramarital relationship, conceived a child, and initially hid that fact from her husband. (C.A., supra, 29 Cal.App.5that p. 30.) But the relevant similarity ends there. In C.A., the spouses allowed the biological father to act in a parenting role for three years, and the child bonded with him and his close relatives. Then they excluded him from the child's life. (Ibid.) The court granted the biological father's petition to be named a third parent under section 7612, subdivision (c). (C.A., at p. 34.) In contrast here, the person seeking third-parent status is one who already has an existing and continuing day-to-day parent/child relationship that would not be disrupted by recognizing only Mother and Bio-Father as parents.
Further, we understand the court's observation that Stepfather had been excluded from the first year of Child's life in the context of its other comments. Significantly, the court also found that Stepfather "love[s]" Child and she is "bonded" to him "to a significant extent." Thus, when read as a whole, as it must be, the judgment reflects a finding that despite being excluded from the first year of Child's life, Stepfather has developed a deep parental bond with Child. Thus, contrary to Stepfather's assertions, the court denied his request to be named a third parent not because he and Child lacked a strong bond, but because Child can be expected to thrive in the strong bond they continue to have by virtue of the stepparent relationship.
(See Cray ton v. FCA U.S. LLC (2021) 63 Cal.App.5th 194, 207, fn. 3 [judgment is to be construed"' "as a whole to effectuate the obvious intention"'"].)
Alternatively, Stepfather maintains that even if the court applied correct criteria, its ruling was "arbitrary and capricious" because of undisputed evidence of the Child's deep emotional bond with him as father. But this argument betrays Stepfather's misunderstanding of section 7612, not that of the family court. The critical and fundamental question under section 7612, subdivision (c) is not merely whether Stepfather and Child have a deep emotional bond. To be sure, such a relationship is necessary-but it is not sufficient. As we have explained, to be a third parent there must also be evidence establishing that the relationship will be ruptured unless the third person is determined to be a third parent. Here, there is every indication that Child will enjoy a wonderful relationship with Stepfather, and that bond will continue throughout Child's minority, without the necessity of a judgment making him a third parent. If during Child's minority Mother predeceases Stepfather or they divorce, nothing in these proceedings or this opinion would be res judicata on the issue of third-parent status under section 7612, subdivision (c)." 'The theory of estoppel by judgment or res judicata. . . extends only to the facts in issue as they existed at the time the judgment was rendered and does not prevent a reexamination of the same questions between the same parties where in the interim the facts have changed or new facts have occurred which may alter the legal rights of the parties. When other facts or conditions intervene before a second suit, furnishing a new basis for the claims and defenses of the respective parties, the issues are no longer the same and the former judgment cannot be pleaded in bar of the second action.'" (City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th2lO, 230, italics omitted.)
DISPOSITION
The judgment entered September 9, 2020 is affirmed. Because respondents did not file a brief or otherwise make an appearance, no costs are awarded on appeal. (See In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th698, 704.)
WE CONCUR: AARON, Acting P. J., IRION, J.