In the Child’s Best Interest

The Oklahoma Supreme Court issued a decision on November 17, 2015 in the case of Ramey v. Sutton in which the biological mother in a same sex relationship wished to cut ties between her partner and child after their break-up which followed almost 10 years of co-parenting. In this case, after the couple split, the non-biological mother petitioned the district court for custody and visitation orders. The biological mother argued that no legal standing for such a request existed, as the parties were never married nor did they ever enter into a written parenting agreement regarding the child that they were raising together.

Even though the law did not allow for same sex marriage at the time they became committed to each other in 2004, the couple wore diamond rings to signify their commitment to each other. About a year later, the women mutually decided to have a child together and parent jointly. The couple wore their diamond rings for over 8 years and lived together for approximately 10 years (as roommates for 1.5 years after their breakup in order to co-parent). This case was initiated once the mothers no longer resided together, and the non-biological mother sought custody and visitation rights to the child that she had helped raise since his birth and following 10 years of his life.

The district court denied the biological mother’s opposition and she appealed. The Oklahoma Supreme Court’s decision is a powerful testament to the public policy to consider the best interests of children and the rights of non-biological parents. The Court decided as follows: acknowledged the rights of the non-biological parent in a same sex relationship who has acted “in loco parentis”, which is defined in Oklahoma as “one who has assumed the status and obligation of a parent without formal adoption”, where the couple, prior to the state and US Supreme Court case law declaring the ban on same sex marriage unconstitutional “(1) were unable to marry legally; (2) engaged in intentional family planning to have a child and to co-parent; and (3) the biological parent acquiesced and encouraged the same sex partner’s parental role following the birth of the child.”

The full Oklahoma decision can be viewed here:

In California the law is clear regarding the presumptions that create a parental relationship, which would entitle a non-biological or non-adoptive person to parental rights such as custody and visitation, as well as parental obligations such as child support. If the above case was heard in California, the relevant code section under which the non-biological mother could be considered a presumed parent is California Family Code § 7611(d), which states that a person is presumed a parent if he or she “receives the child into his or her home and openly holds out the child as his or her natural child.”

In the Supreme Court of California’s 2005 decision in Elisa B. v. Superior Court, the court’s opinion stated: “In [In re Nicolas H.], this court held that a non biological father who receives a child into his home and holds the child out as his natural child can be the “presumed” father of the child. If a non biological father can by his conduct meet the statutory definition of a presumed father, then by parity of reasoning a non biological mother can become a presumed mother, as the majority concludes. Here, Elisa became a presumed mother of the twins to which Emily gave birth when she both received the twins into her home and openly held them out as her natural children. (§ 7611, subd. (d).)”

Ultimately, the best interests of the child are key. As the Supreme Court of California stated in In re Nicolas H. and again in Elisa B., what drives these presumptions is the state’s concern for the child’s welfare and its interest in preserving the integrity of the family. And, it is typically found that a continued relationship with both of a child’s parents will be in the child’s best interests. Just because the child is raised by same-sex parents does not make this any less true. Interestingly, the California Family Code also has a provision that would allow for a child to have more than two parents, “if the court finds that recognizing only two parents would be detrimental to the child” (CA Family Code §7612).

We understand that matters involving your children are sensitive and could greatly affect your family, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California’s child custody laws, we encourage you to contact us as soon as possible.

Nancy J. Bickford, a Certified Family Law Specialist (CFLS) is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Please call 858-793-8884 to understand how she can help your child custody battle begin and end with keeping your kids where they belong: With you.

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