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Scott v. Superior Court of Sacramento County

February 25, 2009

WILLIAM D. SCOTT, JR., PETITIONER,
v.
THE SUPERIOR COURT OF SACRAMENTO COUNTY, RESPONDENT;
RACHAEL A. CHILDRESS ET AL., REAL PARTIES IN INTEREST.



ORIGINAL PROCEEDINGS. Petition for Writ of Mandate and Request for Stay. Eugene L. Balonon, Judge. Writ issued. (Super. Ct. No. 01FL02807).

The opinion of the court was delivered by: Scotland, P. J.

CERTIFIED FOR PUBLICATION

Jan Forsberg had an intimate relationship with William Scott and, for many years, she lived with him and his three children from his prior relationship with Rachael Childress. (For simplicity and clarity, we will refer to them by their first names and use Bill for William, as the parties have in their briefing.) When Bill‟s relationship with Jan deteriorated in 2008, Bill and his children moved out of Jan‟s home.

Seven years prior to his breakup with Jan, Bill had been awarded sole legal and physical custody of his three children in a Uniform Parentage Act (UPA) action between Bill and Rachael. (Fam. Code, § 7600, et. seq.; further section references are to the Family Code unless otherwise specified.)

After Bill left with the children, Jan sought to join the dormant UPA action on the ground that she was entitled to custody and visitation as the children‟s presumed or de facto mother.

Over the objections of Bill and Rachael, the superior court granted Jan‟s petition for joinder and ordered the parties to mediate the matter of custody and visitation.

Bill then filed in this court a petition for writ of mandate, seeking to overturn the superior court‟s rulings. He contends that Jan does not have standing to intrude into the parental role of Bill and Rachael and to "diminish [their] rights to make decisions in the best interests of their children." After staying the orders, we issued an alternative writ of mandate to decide the issues raised in Bill‟s petition. We now conclude the superior court erred.

While we recognize the caregiving role that Jan played in the lives of the children for many years, we conclude she lacked standing to be joined in the UPA proceeding. As we will explain, Jan, a non-parent, cannot seek to gain custody of the children by injecting herself into the inactive UPA action in which the issue of custody was settled years ago.

FACTS AND PROCEDURAL BACKGROUND

Rachael gave birth to her three children with Bill in 1997, 1998, and 1999. In 2000, Bill began dating Jan and moved into her home in December of that year. The children lived with Rachael until Child Protective Services in Nevada removed them from their drug-addicted mother‟s custody. Bill flew to Nevada to retrieve the children and was awarded sole legal and physical custody in a UPA judgment entered in October 2001 in the Superior Court of Sacramento County.

According to Jan, Bill and his children moved into her home in March 2001 when Bill‟s mother indicated Bill‟s stepfather could not tolerate the children‟s crying and asked them to move. Seven years later, in February 2008, Jan confronted Bill about his alleged infidelity. When she asked him to leave, he "abruptly took the three children . . . and moved in with his mother and step-father."

When Bill refused Jan access to the children, she moved to join the UPA action and to obtain custody under section 3041, subdivision (c)--which allows a non-parent to be awarded custody under certain circumstances--and section 3021, subdivision (f)-- which makes section 3041, subdivision (c) applicable to UPA custody proceedings. Jan argued joinder was appropriate under California Rules of Court, rule 5.158(a), which states: "The court must order joined as a party to the proceeding any person the court discovers has physical custody or claims custody or visitation rights with respect to any minor child of the marriage." (Further rule references are to the California Rules of Court.)

In Jan‟s view, she was entitled to custody and visitation as the children‟s presumed or de facto mother, and she and Bill "must find a way to co-parent our children." Jan stated she held the children out as her own, added them to her health insurance policy at work, was their emergency contact for school and daycare providers, helped with their homework, and integrated them into her extended family. Jan also asserted she was the primary caregiver because Bill was a full-time student and had jobs requiring him to work in the evening or on weekends. Jan submitted numerous photographs and cards demonstrating that the children viewed her as their mother, and that her family viewed the children as part of their family. Jan was concerned about the living conditions at the home of Bill‟s mother and stepfather, in light of the lack of adequate room and Bill‟s contentious history with his stepfather. According to Jan, "[t]he children were, and are, my life"; only she, not Bill, is capable of caring for them; and Bill is ignoring the basic public policy that children have continuing and frequent contact with both parents by denying her visitation. She requested mediation of custody and visitation issues.

Bill and Rachael submitted declarations objecting to Jan‟s joinder and attempt to interfere with their custodial and parental rights. Bill disputed Jan‟s claims concerning the extent of her parental involvement, and asserted that he was the one who cared for his children, set boundaries for them, put them to bed, and picked them up from school unless his own school or work schedule interfered with his ability to transport them. Among other things, the ...


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