The Evolution of Parentage Law and Recognition of LGBTQ Families and the Impact on Children in Dependency Proceedings: A View from the Bench

Juvenile dependency proceedings are designed to protect the safety and well-being of children. The judge’s responsibility is to ensure the safety of children and be the guardian of the constitutional rights of parents. One of the first issues the judge presiding over dependency proceedings must address is the determination of parentage. Determining parentage not only has implications for those seeking to assert parental rights and for the child who has a parent-child relationship with certain adults, but it also has a significant effect on relatives who have statutory preference for placement of children removed from a parent’s custody and placed in foster care. Parentage findings have a direct impact on the pool of potential “legal” relatives for a child who is removed from his or her parents in a dependency proceeding. There is a strong policy interest in placing a child with relatives who may afford a child a sense of belonging to a larger, extended family when the parents are attempting to reunify or when they fail to do so. The parentage determination has become more complicated and challenging as family compositions have changed. LGBTQ families, in particular, have faced unique challenges in the face of evolving parentage law.

The Uniform Parentage Act (UPA) was adopted by the California Legislature in 1975 and is codified in the Family Code. Under the UPA, legal parentage is based largely on the existence of a parent-child relationship rather than the legal relationship between the parents, of principal importance under common law. It is clear from the UPA that the intention of the statute is to legitimize children (who were, under common law, considered illegitimate when born out of wedlock) and facilitate legal parentage. Under common law, most states had rules relating to parentage that penalized children born out of wedlock. The UPA, though it advanced the rights of many unmarried heterosexual couples, was initially interpreted by courts in such a way as to limit findings of parentage to one natural mother and one father (whether biological or presumed based on a legal marriage or social relationship with the child). Thus, prior to the recognition of same-sex marriage in California, same-sex couples could not avail themselves of the marital presumption under the UPA and, absent a second parent adoption, it was nearly impossible for two persons of the same sex to both establish parentage, even in cases where it was clear that the couple intended to establish a parent-child relationship and the couple took steps to conceive a child through reproductive technology. See, e.g., Nancy S. v. Michele G. (1991) 228 Cal.App.3d 831.

By 2005, same-sex couples began to enjoy expanding parentage rights with the enactment of the California Domestic Partner Rights and Responsibilities Act (DPA), codified in Family Code section 297.5(d). This Act made clear the Legislature’s intent that the same rules that apply to determining the parentage of children born to married parents must be applied to children born to registered domestic partners. The California Supreme Court further expanded protections to children and same-sex couples in three decisions involving couples who were not registered domestic partners. Elisa B. v. Superior Court (2005) 37 Cal.4th 108; K.M. v. E.G. (2005) 37 Cal.4th 130; Kristine H. v. Lisa R. (2005) 37 Cal.4th 156. These cases recognized the importance of providing legal protections to children regardless of the legal status of the relationship between the parents and of recognizing the need to preserve the existing biological and social relationships between parents and children.

More recent legal advances have afforded even greater protections for children and parents in same sex and other non-traditional relationships. Now, with marriage equality, a same-sex married couple is automatically presumed to be the legal parents of a child born during the marriage, just as with a married heterosexual couple. In 2013, Governor Brown signed into law Senate Bill 274, which allows more than two persons to be found to be the legal parents of a child. This bill came in response to a 2011 appellate decision in a juvenile dependency proceeding in which the Court of Appeal reversed a trial court’s finding that the child had three parents: a presumed mother, a biological mother and a presumed father. See M.C. (2011) 199 Cal.App.4th 784. The Court found that there was no legal support for dual paternity or maternity, and that a child could not have three legal parents under the UPA and applicable caselaw. In response, SB 274 permits a court to find more than two persons with a legal claim to parentage if recognizing only two legal parents would be detrimental to the child.

The majority of families involved in juvenile dependency proceedings are not the traditional nuclear family as defined under common law. Parents are typically unmarried, have not registered as domestic partners, and have more often than not failed to seek court determination of legal parentage prior to child welfare involvement. Social workers, attorneys for parents and children, and judges have had to keep abreast of the changing legal landscape to ensure that non-traditional families, and in particular LGBTQ families, receive proper notice of dependency proceedings to assert parentage claims and to encourage family members to come forward as potential caregivers, providing both temporary care and in some cases a permanent home through adoption or legal guardianship for the child.

For unwed same-sex couples with children, the failure to seek determination of legal parentage can lead to unanticipated consequences for these families. Not only do these parents face possible loss of custody and visitation rights but the child may suffer long-term emotional harm by the disruption of strong emotional connections with important adults in the child’s life. A child may lose his or her connection with an adult who the child knows as a parent, or placement with a safe, loving relative who, because parentage has not been determined, may not meet the statutory definition of “relative” with a preferential claim to placement under the applicable statutory scheme in dependency proceedings. Parentage findings in dependency proceedings is complicated because there are often competing claims of parentage and many social workers and courts may be reluctant to recognize more than two parents as legal parents. Fortunately for children and families in California, the legislature and courts have placed great emphasis on the bond between children and those who assume the role of a parent, and the need to acknowledge the expanding definition of family.