Good News For Grandparents

Third “PRESUMED PARENT” Family Code 7612(C) –
Requires Established Relationship Required

New Non-Dependency Caselaw

Family Code 7612(c)

California is one of the only states that provides and protects a third parent’s right to parent under certain circumstances. Non-traditional relationships, platonic parenting, grandparents involved in children’s lives, and polyamorous relationships are more common than ever making a need for a third parent recognition. 

In 2013, California enacted Family Code Section 7612(c) “three-parent” law, which provides a child may have a parent-child relationship with more than two parents. The statute allows for the recognition of non-biological parents in addition to biological parents.

Download a PDF about Psychological Parentage, Troxel,  and the Best Interests of the Child.

Download a good PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

M.M. V. D.V.

Published 7/19/21; Fourth Dist., Div. One. Docket No. D077468

In re M.C. (2011) 195 Cal.App.4th 197

In 2013, California enacted Family Code §7612(c), a groundbreaking law, which provides that a child may have a parent-child relationship with more than two parents. Prior to the enactment of the new “three parent law,” a biological parent had to terminate his or her rights before a non-biological parent could be legally recognized as a parent. By removing the two parent legal limitation, the new law allows for, among other things, the recognition of non-biological parents in addition to two biological parents.

Family Code §7612(c) permits the recognition of more than two parents in cases where “recognizing only two parents [i.e., biological parents] would be detrimental to the child.” In deciding whether to recognize more than two parents for a child, the Court will 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 who has assumed that role for a substantial period of time. (Family Code §7612(c)).

The law was enacted in the wake of the California Court of Appeal’s ruling in the complex and heartbreaking case In re M.C. (2011) 195 Cal.App.4th 197. In that case, the child was placed into foster care after her biological mother, and the only parent listed on the child’s birth certificate, was incarcerated. The child’s biological father was virtually absent from the child’s life in a different state, and was not a presumed parent under the law because the parents were never married. The child’s court appointed counsel sought to keep the child out of foster care by arguing that the child had an additional parent: the biological mother’s same-sex partner who was married to the biological mother at the time the child was born. Although the Court was sympathetic to the need for a change in the parentage law, it concluded that the legislature would have to move first. As a result, the child was left in foster care. Fortunately, the legislature responded to the Court’s invitation to change the law so that similar tragedies need not be repeated. https://www.boydlawlosangeles.com/boyd-law-successfully-achieves-one-of-californias-first-rulings-under-new-three-parent-law/

THE EXISTENCE OF AN ESTABLISHED PARENT-CHILD RELATIONSHIP IS REQUIRED TO QUALIFY AS A THIRD “PRESUMED PARENT” UNDER FAMILY CODE 7612(C).

In re M.C. (2011) 195 Cal.App.4th 197

Mother was in a relationship with two men, M.M. and T.M., at the same time. When she discovered she was pregnant, mother told M.M. that he could not be the father based on the timing of conception. When the child was born, T.M. signed a voluntary declaration of parentage and was listed as the father on the birth certificate. T.M. and mother then married. When the child was 2½ years old, DNA testing determined M.M. to be the biological father. Mother allowed M.M. to meet with the child for a brief time but then cut off contact because she thought it would be “confusing and traumatizing” to introduce a stranger into the child’s life. M.M. filed a petition to be declared a third presumed parent within the meaning of Family Code 7612(c). However, M.M. also argued that he should be accorded “presumed father” status as a Kelsey S.-father because mother, by denying him access to the child, had prevented him from establishing himself as presumed father. M.M. testified he would have assumed his obligations had he known the child was his, but acknowledged he never paid nor offered to pay child support.

Affirmed. Family Code 7612(c) allows a third presumed parent-finding “if the court finds that recognizing only two parents would be detrimental to the child.” Because only a person “with a claim to parentage” is eligible to be a third parent, the person must first show that he or she qualifies to be a presumed parent – a status which is based on familial relationship rather than any biological connection. Moreover, this parent-child relationship must be shown before determining whether recognition of only two parents would be detrimental to the child. Here, M.M. neither qualified as a Kelsey S.-presumed father (having failed to show a full commitment to his parental responsibilities) nor a presumed parent under the definitions listed in 7611. Lastly, even if M.M. had qualified as a presumed parent, this was not an “appropriate action” in which to find a child has more than two parents. Legislative history shows this provision was intended to be narrow in scope and apply only in “rare cases” in which a child “truly has more than two parents” who are parents “in every way.” Accordingly, an “appropriate action” for application of 7612(c) is one in which there is an existing parent-child relationship between the child and the putative third parent such that recognizing only two parents would be detrimental to the child. Here, M.M. had the burden to show an existing meaningful relationship between the parent and the child, but none existed between him and the child. (ML)

cited https://www.clccal.org/blog/dependency-legal-news-vol-17-no-6/

A Washington state law gave any person the ability to override a good parent’s decision about visitation by simply claiming that it would be “best” for children to allow the third-party to have visitation rights. When the U.S. Supreme Court reviewed the law in Troxel v. Granville, 530 U.S. 57 (2000):
Third parties who seek visitation with children should not be required to show that the lack of visitation would affirmatively harm the child. Once further proceedings had unfolded in state court under that adjusted standard, the Court could return to any federal questions that might arise later, such as whether the statute failed to protect the parent’s rights sufficiently.

The burden is on the grandparents to show that mother is acting purely out of spite and in a way that is clearly harmful to the children. If the judge, after reviewing all the evidence, concludes that in this case there has been ‘‘an arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child,’’ it is constitutionally permissible for the judge to order that the grandparents have some visitation with their grandchildren.

What was the effect of Troxel vs Granville?

• The court did not find that visitation laws are unconstitutional.
• Third-party petitioners are still allowed in every state to seek visitation rights.
• Many states only consider visitation rights by third parties to be a minor burden on parents right to have control of the upbringing of their children.
• After the Troxel case, many states now place great weight on what a fit parent’s decision is regarding what is best for their child when deciding whether to grant visitation rights, especially grandparent visitation rights.

In 2013, California enacted Family Code §7612(c), a groundbreaking law, which provides that a child may have a parent-child relationship with more than two parents. Prior to the enactment of the new “three parent law,” a biological parent had to terminate his or her rights before a non-biological parent could be legally recognized as a parent. By removing the two parent legal limitation, the new law allows for, among other things, the recognition of non-biological parents in addition to two biological parents.

Family Code §7612(c) permits the recognition of more than two parents in cases where “recognizing only two parents [i.e., biological parents] would be detrimental to the child.” In deciding whether to recognize more than two parents for a child, the Court will 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 who has assumed that role for a substantial period of time. (Family Code §7612(c)).

The law was enacted in the wake of the California Court of Appeal’s ruling in the complex and heartbreaking case In re M.C. (2011) 195 Cal.App.4th 197. In that case, the child was placed into foster care after her biological mother, and the only parent listed on the child’s birth certificate, was incarcerated. The child’s biological father was virtually absent from the child’s life in a different state, and was not a presumed parent under the law because the parents were never married. The child’s court appointed counsel sought to keep the child out of foster care by arguing that the child had an additional parent: the biological mother’s same-sex partner who was married to the biological mother at the time the child was born. Although the Court was sympathetic to the need for a change in the parentage law, it concluded that the legislature would have to move first. As a result, the child was left in foster care. Fortunately, the legislature responded to the Court’s invitation to change the law so that similar tragedies need not be repeated.

This new law has application in several areas of family law, including: 1) the parentage of non-biological parents; 2) situations where existing parents are unable to care for a minor; and 3) other situations where children need the help of a third parent without termination of the rights of the existing parents.

In October 2015, Boyd Law successfully achieved third parent status for a client in one of the first cases in the state to interpret the new “three parent law.” In finding in favor of our client, the Court found that all of the criteria under Family Code §7612(c) were met.

This was truly a case that fit into the legislative intent behind the law, as the failure to recognize our client as a third parent would have been detrimental to the child. However, the facts of each case are unique. The attorneys at Boyd Law have the experience, skill, and forward thinking legal minds to achieve any results for our client, even in cases of first impression. source

Download a PDF about Psychological Parentage, Troxel,  and the Best Interests of the Child.

Download a good PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

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