So Long and Thanks for All the Sperm!

Current law fails to sufficiently protect the rights of non-biological parents who have raised a child. The child's biological parents may sign a Voluntary Declaration of Paternity and use this declaration to cut a non-biological parent out of the picture. AB 1349 will clarify that the courts can consider the relationship between the child and his or her biological and non-biological parents when they are asked to rule on who the child's legal parents are. This bill would protect parents in both same-sex and opposite-sex couples.

Wow.  "The child's biological parents may sign a Voluntary Declaration of Paternity and use this declaration to cut a non-biological parent out of the picture . . ."

Let's say it again - a Voluntary Declaration of Paternity (VDP).  Do you know who signs such a document?  It is not the "child's biological parents", with an emphasis on the plural - it is Dad, Pop, Papi, Father Dearest who signs it. 

A man is presumed to be the father of a child born to a married couple who are living together under California law.  For unmarried couples, a signed Voluntary Declaration of Paternity by a man at the time of the child's birth basically adjudicates him to be the father, and if there is any objection, a motion can be brought to set it aside (example:  the fellow who signs one and then suspects the biological father is another guy, or the other guy who wants to acknowledge his paternity).  California law also has the notion of presumed parent, such as in the case where a child is born to an unmarried couple and they go about raising it as their own, with the father holding out the child to the world as his own.  Again, within a statutory timeframe (two years, if my memory serves me), this can also be challenged.

So it seems the paternity question has been covered by law (and I am putting aside surrogacy and sperm donation, as these are governed by both contract and law).  So why Bill AB1349, which now sits on Governor Brown's desk for his signature?

This bill would provide that a voluntary declaration of paternity is invalid if, at the time the declaration was signed, the child already had a presumed parent, as specified, or if the man signing the declaration is a sperm donor. The bill would authorize a person who is rebuttably presumed to be the child's parent under the above-described provisions to bring a motion to set aside a voluntary declaration of paternity, and would require the court to consider specified factors, including the nature, duration, and quality of the petitioning party's relationship with the child in deciding whether to set aside the voluntary declaration of paternity . . . The bill would provide that, in the event of a conflict between a rebuttable presumption of paternity and the voluntary declaration of paternity, the weightier considerations of policy and logic control.

First, stop calling this a bill that affects parents when it deals with paternity - it is a bill that affects the rights of fathers.  What it does, in essence, is allow a mother to reject a VDP and ask the court to decide not who is the child's father, but who are the child's parents, based upon "the nature, duration, and quality of the petitioning party's relationship with the child."

You see, the existing law is designed to handle the situation when there is Mother, there is Father, and there is possible other Father.

But . . . what if there is Mother, there is Father, and there is Mother's Partner? 

What AB1349 does is allow the same-sex partner of a female couple to come to court and argue that the "nature, duration, and quality" of her relationship with the child trumps Dad's VDP.  Based upon my experiences in the California family court, I can see a fact pattern emerging from this - hell, I have seen this fact pattern.  Lesbian couple, but one is more experimental and sleeps with Dad.  She gets pregnant.  She basically cuts Dad out of the picture during her pregnancy while lesbian partner is at every doctor visit, every ultrasound.  Child is born.  Dad goes to hospital and signs VDP.  Dad then goes to court and gets . . . well, we've got an infant and a lactating mother, so he gets some sort of visitation, maybe not more than two hours at a time.  Lesbian partner, meanwhile, is changing diapers, giving baths, feeding, and "bonding" with the child (oh Lord, I can see this declaration presented to the court already).  Dad wants to be a part of this child's life.  Mom and Partner don't want that.  AB1349 - assuming it becomes law - gives them the opportunity to go to court and set aside that VDP . . . and all of Dad's rights as parent along with it.

Happy Father's Day!