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E.C v. J.V

January 19, 2012


Appeal from a judgment of the Superior Court of San Joaquin County, Xapuri B. Villapudua, Judge. (Super. Ct. No. FL361893)

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


Reversed with directions.

E.C. (appellant), the former same-sex partner of J.V. (respondent), appeals from a trial court order finding appellant failed to establish that she is a presumed parent of respondent's biological child, L.V. (the minor), under Family Code section 7611, subdivision (d) (hereafter section 7611(d)).*fn1 On appeal, appellant contends the trial court misapplied the law for determining presumed parent status under the Uniform Parentage Act (UPA; § 7600 et seq.) and erred in finding she failed to satisfy her burden of proof at trial. Appellant asks this court not only to reverse the trial court's decision, but also to find that she is a presumed parent of the minor and it would be an abuse of discretion to rebut that presumption.

We agree the trial court misapplied the UPA to the facts of this case. Accordingly, we shall remand the matter to allow the trial court to exercise its discretion with a clear understanding of the UPA and its purpose.


In 2002 respondent was in a sexual relationship with Brian P. In the course of that relationship, respondent became pregnant; soon afterward she ended her relationship with Brian. Respondent then became good friends with appellant.

During respondent's pregnancy, appellant took respondent to her doctor's appointments. Appellant was respondent's Lamaze childbirth preparation class partner, and they often spent the night at each other's homes. Appellant was with respondent during the birth of the minor; appellant even cut the umbilical cord.

After the minor was born, respondent and the minor lived with respondent's mother until the minor was three months old, when they moved into appellant's home. Sometime thereafter, appellant and respondent's relationship became sexual, but they did not immediately tell their families.

Appellant and respondent remained in a committed relationship for the next five years. During their relationship, appellant gave respondent a ring and they discussed entering into a domestic partnership but never did.

Appellant took the minor to her doctor's appointments and extracurricular activities. Appellant joined the Air Force in August 2005, and when she had to leave town to perform her service, respondent and the minor moved in with appellant's mother. Appellant signed up the minor for kindergarten and listed herself as the minor's "step-parent or legal guardian" on the kindergarten registration form.

While appellant was away serving in the military, she and respondent exchanged letters. In one of her letters, respondent told appellant how the minor lay down next to her and "rubbed [respondent's] face." Respondent wrote, "It made me think we made this loving little girl & she loves us both dearly." She also told appellant, "You want to know something funny? [The minor] calls your mama 'GRANDMA.'. . . Hopefully she gets close to your mom!"

In another letter, respondent referred to appellant's wish to have parental rights to the minor: "Well, I can see that your [sic] pretty serious about the custody thing. We'll talk about it some more when you come home for Christmas K [sic]? I think it's a great idea."

Brian, the minor's biological father, visited the minor a few times when she was an infant, but he was not involved in her life. Brian never tried to establish paternity and he provided no financial support for the minor.

In April 2008 appellant and respondent's relationship ended. The minor was nearly five years old. Respondent and appellant agreed appellant would have "visitation" with the minor, and they agreed to share the holidays. The minor still wanted appellant to attend her kindergarten graduation. Then, in February 2009, "communication between [appellant] and [respondent] broke down," and respondent then "prevented [the minor] from visiting with [appellant]."

Five months later, appellant filed a petition to establish a parental relationship with the minor. Along with her petition, appellant filed an order to show cause, seeking joint custody of the minor and visitation. Respondent opposed both the petition and the order to show cause, saying that appellant was the minor's godmother only, not a coparent.

The matter proceeded to an evidentiary hearing, where both appellant and respondent presented evidence in support of their positions. Appellant's mother, R.C., testified that although they were only friends at first, after the minor was born she perceived appellant, respondent, and the minor as a "family unit." R.C. further testified that appellant told people the minor was appellant's daughter. R.C. treated the minor as her own granddaughter and attended the minor's extracurricular activities. The minor did not call R.C. "Grandma," but simply R.C.

Appellant's sister, M.A., also testified that appellant, respondent, and the minor were a "family unit." M.A. said the minor called her "Auntie [M.]," and the minor considered M.A.'s children to be her cousins.

Heather R. met respondent, appellant, and the minor in 2007. Her daughter and the minor were in cheerleading together. It was Heather's impression that respondent, appellant, and the minor were "a family," that respondent and appellant were the minor's two moms. Heather described how appellant would bring the minor to practice and respondent would join them later. Heather also remembered that appellant referred to the minor as "her daughter" and "[respondent] never corrected her."

David L., another mutual friend of respondent and appellant, also testified. David was with respondent, appellant, and the minor approximately three times a week. He remembered that appellant "acted as [the minor's] other mother," and he too thought of them "as a family." Like Heather, David also heard ...

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