Co-Parent Trumps Grandmother

California appeals court finds lesbian should be guardian of ex-lover’s birth daughter

A California appeals court has affirmed a decision by Ventura County Superior Court Judge Steven Hintz to award the guardianship of a young girl to her mother’s former lesbian partner, over the protest of the child’s maternal grandmother.

Justice Kenneth P. Yegan’s opinion for the court, issued December 20, found no error in Hintz’s conclusion that awarding guardianship, including residential custody, to the co-parent was in the child’s best interest.

Yegan referred to all the parties in the case by their first names in order to preserve confidentiality.

Kelly and Bernadette began their relationship in 1987 and decided to have children together using donor insemination seven years later. Bernadette gave birth to Isaak in 1995 and Kelly gave birth to Sophia in 1996. They lived together as a family in San Francisco until the relationship between the women broke down in 1998 and Bernadette and Isaak moved out. However, the women remained in frequent contact with one another and the children, who related to each other as siblings.

Then tragedy struck. Kelly was diagnosed with Parkinson’s Disease in 1999, and experienced physical and mental symptoms that led to loss of her job and her ability to care for Sophia. Kelly and Sophia moved to Thousand Oaks to live with her mother, Nancy. Bernadette and Isaak were in frequent telephone contact with them, and visited monthly.

By 2002, however, Kelly’s condition had so deteriorated that she spent long periods in the hospital, and Nancy filed a petition in the Ventura Superior Court seeking to be appointed her granddaughter Sophia’s guardian. In her petition, Nancy did not mention Bernadette, did not give her any notice of having filed it, and stated under oath that she did not “know of any person who is not a party to this proceeding who has physical custody or claims to have custody of or visitation rights with any child subject to this proceeding.”

On the basis of this petition, the court granted temporary guardianship to Nancy. Once Kelly and Bernadette, the former partners, got wind of this, they moved quickly to contest the ruling, Kelly indicating that she wanted Bernadette to be the permanent guardian of Sophia. However, over the next few years as the case dragged on, Kelly frequently changed her mind about who should be the guardian, and ultimately the court decided that her views on the matter did not count for much.

The case was turned over to Judge Hintz for trial, which proved to be lengthy. The public defender in Ventura County was appointed to represent Sophia’s interest, and that office petitioned to have Bernadette, who had relocated to Thousand Oaks to be near Sophia, appointed as guardian.

Previously friendly relations between Nancy and Bernadette soured during the litigation ordeal, to the point that Bernadette alleged that Nancy “was engaged in a vendetta against her and all lesbians,” according to the court’s opinion.

At the trial’s conclusion in July 2004, Hintz, taking into account expert psychological testimony and the totality of circumstances, concluded that it would be in Sophia’s best interest for Bernadette to be her guardian, even though, as a matter of law at that time, Bernadette was not legally Sophia’s parent.

Appealing this ruling, Nancy argued that the ruling violated the preferences set out in the California Family Code, which says that if guardianship cannot be awarded to a parent, the next best thing is to award it to the person with whom the child has been living. Sophia had been living with Nancy for several years due to her mother’s illness and the temporary guardianship order that was issued in 2002, and continued to do so throughout the trial.

Judge Yegan found that the preferences had not been violated. Sophia lived with Bernadette for the first two years of her life, after all, and had a close tie with her as her co-parent. Furthermore, although Hintz had specifically ruled that Bernadette was not Sophia’s parent because a child could not have two mothers, Yegan found that ruling was superceded by important decisions from the California Supreme Court his past August, holding that in fact in California a child can have two legal parents of the same sex.

Ultimately, however, this case turned on the wide discretion given to the court in guardianship cases to make a decision in the best interest of the child. Unlike a custody dispute between a parent and a non-parent, a guardianship case in which no legal parent is involved presents the court with discretion unencumbered by the constitutional rights that legal parents who are fit have giving them clear priority over the claims of any third party. It was clear from the start that Kelly was no longer fit to have custody, and thus the only relevant legal parent was out of the picture. The Family Code does express preferences, but they are not absolute and can be trumped by the facts.

Bernadette’s longstanding parental ties to Sophia, together with her age and resources as compared to Nancy, made her the better candidate for guardianship, in the court’s view. The enmity between Nancy and Bernadette also made it likely that appointing Nancy as guardian would make the close relationship among Bernadette, Isaak, and Sophia difficult to maintain.

“On this record,” Yegan wrote, “we are not able to determine whether Bernadette would qualify as Sophia’s parent under [the recent California Supreme Court decisions], nor is it necessary for us to decide that issue. We note only that Nancy may no longer be entitled to any preference under the statute, since a parent takes preference over a non-parent.”

Since Bernadette’s claim to guardianship trumped that of Nancy, who could never be found the legal parent, resolution of the case did not require that Kelly’s former partner be found to be the legal mother of Sophia.