California provides multiple paths for persons with non-biological relationships to children to become parents and to gain parental-type custodial and visitation rights. The public policies supporting these promote non-disruptive initial “parentage” determinations. They also favor stability and continuity in a child’s life if substantial parent-like relationships are developed. This century’s liberalization of the pertinent laws has both followed and facilitated the evolution of societal perceptions and norms about “what constitutes a family.”
In C.C. v. R.B., our Second District of the Court of Appeal respected this while addressing a San Luis Obispo County parentage case brought by a sperm donor who previously expressly waived all parental rights pursuant to a stipulated second parent adoption by the biological mother’s wife. The factual complication was that, based on the donor’s waiver, the married lesbian mothers for eleven years allowed the donor a parent-like relationship with their daughter.
But as she neared her twelfth birthday, the girl reported the donor was exhibiting concerning/abusive behavior toward her. The mothers jumped into “protective” mode, denying him further contact in a “time out” toward first evaluating the situation.
The donor aggressively responded, filing a parentage action requesting orders designating him a formal third parent – pushing his way “in” against the family’s reasoned wishes. The mothers retained Herring Imming (“HI”) in defense. Toward avoiding dragging the family through formal discovery and a trial based on the girl’s allegations, HI brought a motion to quash (terminate) the entire action. It argued that, as a matter of law, the donor should not even get to the point of arguing for parentage of and reunification with the child because he lacked standing based on the undisputed fact of his original waiver of all rights.
Could a biological donor, who originally expressly waived all parental rights pursuant to a stipulated judgment of adoption, ten years later gain “parent” status under California’s later liberalized[1] parentage laws?
HI said “no.” It argued:
- The donor’s suit was an improper collateral attack on the original judgment of adoption. Under Family Code section 8617, “the existing parent or parents of an adopted child are, from the time of adoption, relieved of all parental duties towards, and all responsibility for, the adopted child, and have no right over the child.”
- He lacked a post-adoption contact agreement (“PACA”).
- Even if he could show a PACA, such agreements are limited to subjects of visitation, contact, and the sharing of information – they do not include the creation of parental or custody rights.
- Family Code section 7613 prevents biological donors from arguing parentage based on the biological connection.
- He could not establish he is a “presumed parent.” No published decision has held a person who voluntarily consented to a final adoption of a child and terminated all parental rights may subsequently petition for presumed parentage.
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[1] Three years after the child’s birth, California passed legislation allowing a court to find a child has more than two parents “if the court finds that recognizing only two parents would be detrimental to the child.”
The donor argued, in the alternative, that the mothers should be equitably estopped from arguing the law since they allowed his historical access in the first place. This was the converse of their argument that they only allowed access because he waived his rights in the first place. Chicken/egg.
But asserting “equity” cannot succeed where a statutory scheme already exists:
“Rules of equity cannot be intruded in matters that are plain and fully covered by positive statute. When the Legislature has addressed a specific situation, a court cannot wholly ignore the statutory mandate in favor of equitable considerations. Nor will a court of equity ever “lend its aid to accomplish by indirection what the law or its clearly defined policy forbids to be done directly.”
… and, the rights, duties, and obligations associated with adoption are entirely statutory.
The Court, in its Opinion written by Justice Tari L. Cody (formerly “Judge Cody” of the Ventura County Superior Court), agreed:
“California law does not allow [the donor] to attack the validity of an order he consented to more than a decade ago. Permitting such an attack would ‘trifle with the courts,’ and infringe on public policy favoring ‘expediency and finality’ in adoptions.
Thus, in this circumstance, a permanent waiver is a permanent waiver. Otherwise, any adoptive parents would be left in fear – even following permanent waivers as here – of hearing a knock on the door years later, accompanied by a biological donor’s surprise claims of “parenthood.” A finding that the donor had standing to proceed notwithstanding his express waiver would have had a chilling effect on “open” adoptions throughout the state. It would cause any adoptive parent to be reasonably reluctant to allow post-adoption access by a biological donor.
Especially since many “non-traditional” adoptive families plan on allowing future access by biological donors, they — as well as “traditional” adoptive parents — will therefore benefit. The greater institution of adoption, which is founded on “… the legal recognition and regulation of the closest conceivable counterpart of the relationship of parent and child,” will, too.