Thursday, January 19, 2012

E.C. v. J.V. (Cal. Ct. App. - Jan. 19, 2012)

Defining a "family" in the modern world is tough.  Really tough.

What do you think the right answer is here?  J.V. (I'll call her "Judy") is in a sexual relationship with Brian, gets pregnant, and has a kid, but the relationship with Brian ends shortly after the pregnancy begins.  So Judy gets a friend, E.C. ("Emily"), to help.  Judy and Emily are good, and perhaps even best, friends.  Judy makes Emily her Lamaze partner, and even lets her cut the umbilical cord.  But Judy and Emily aren't living together, though they occasionally spend nights in each other's home.  And it's not sexual.

Are they a "family" yet?

After the minor is born, Judy (the mother) and the baby live with Judy's mother, but three months later, move into Emily's house.  But still, it's not sexual.  Are they a "family" now?

Shortly thereafter, however, Judy and Emily start sleeping together.  Judy gives Emily a ring.  They eventually discuss entering into a domestic partnership, but never do.  Emily joins the Air Force in 2005 (let's hear it for "Don't Ask/Don't Tell"), and Judy and the baby move in with Emily's mother.  Family?

What about when Emily signs the baby up for kindergarten and lists herself as the "parent/guardian" of the child?  Or when Emily takes the baby for doctor's appointments and the like?  Judy doesn't make Emily do any of these things, but neither does she stop her.  It's clear that Emily would like some sort of legal status over the child -- at one point, Judy writes a letter that says "Well, I can see that your [sic] pretty serious about the custody thing. We'll talk about it some more when you come home for Christmas K? I think it's a great idea."  But the talks never pan out, and Emily and Judy eventually break up.

And at this point, it's not just a hypothetical question.  If Emily and Judy are a "family," then Emily is a "presumed parent" of the child and likely gets visitation, even over Judy's objection.  But if they're not, she's not.

So whatchathink?  Family?  Does it matter that they weren't having sex when the baby was born?  Does it matter that they didn't strike an actual deal?

The trial court denies presumed parent status.  The Court of Appeal reverses and remands.  It doesn't hold that Emily is a presumed parent.  But it hints that she might well be.

Right result?

Justice Raye definitely gets one thing right.  It's not easy figuring out "presumed parent" status even in those relationships in which biology may matter (e.g., heterosexual ones).  It's even harder when biology does not matter.  And ratchet up the difficulty to an even higher level when the sexual nature of the relationship is either delayed or not present at all.

Tough questions.  Tough case.