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Family Law

: California Divorce Blawg

Ex-Girlfriend Does Not Have Legal Right To Pursue Custody Of Ex-Boyfriend's Children When Long Term Relationship Ends

By John E. Harding, JD, CFLS

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Bill and Rachel were never married, but they did have three children together. When they broke up Bill was given primary physical custody as part of the paternity action between the two of them. Bill then began dating Jan. The relationship grew to the point that Bill, his three children, and Jan all lived together for many years. Unfortunately Jan and Bill ended their relationship.

After the break-up Jan filed papers in the paternity action between Bill and Rachel, seeking custody and visitation rights with the children. She argued that she was the de facto mother of the children because of her long relationship with them, and because she and Bill held the children out to the world as their children. She also raised concerns over Bill's suitability as a parent, and the living conditions in which the children were being raised. The Court of Appeal denied Jan's request explaining that as a non-parent she has no legal standing to seek custody.

The Court writes:

Jurisdiction to adjudicate custody and visitation in a proceeding under the Uniform Parentage Act ("UPA") is premised on there being a parent and child relationship. . . Thus, parentage in favor of the party seeking custody/visitation must be established. . . In a UPA action, the only interested parties are the children and the natural or presumed mothers and fathers. . . There can be only two parents, not three. . . In a same sex domestic partner relationship, a child may have two natural mothers (i.e., a biological mother and a mother meeting the presumed parent criteria in section 7611); but in a heterosexual relationship, there can be only one mother.

The UPA judgment adjudicated Bill as the children?s father. Rachael is the children?s natural biological mother; the UPA judgment names her as their mother, and there is nothing in the record indicating her parental rights were terminated or there is an action pending to terminate her parental rights. Accordingly, Jan cannot be the children?s presumed mother under sections 7611 and 7650, subdivision (a), and she is not an interested party who can initiate a UPA proceeding concerning the children.

The key distinction to be gleaned from this case is that Jan was seeking custody of the children, rather than just visitation. That is a critical difference that sets the decision apart from grandparent visitation requests, step-parent visitation requests, etc. The Court explains:

The custody provisions of the Family Code apply only in proceedings that are generally, if not invariably, initiated by the parents of a child. Further, they have been held not to provide an independent basis for subject matter jurisdiction. . . A nonparent seeking custody therefore lacks standing to initiate a custody proceeding under the Family Code. A guardianship petition under the Probate Code is the only judicial means for a nonparent to obtain custody when the parents have not themselves initiated a custody proceeding. . . Jan did not file a petition for guardianship. Thus, for the custody provisions of the Family Code to have any application, they must be pertinent to an issue under consideration in an action initiated by Bill or Rachael. As relevant here, there must be ?[a] proceeding to determine physical or legal custody or visitation in an action pursuant to the Uniform Parentage Act . . . .? (Fam. Code§ 3021, subd. (f).)

Please click here to read the entire court decision.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Full post as published by California Divorce Blawg on February 25, 2009 (boomark / email).