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L.M v. M.G

August 2, 2012


APPEAL from a judgment of the Superior Court of San Diego County, Susan D. Huguenor, Judge. (Super. Ct. No. D522430)

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



M.G. challenges the trial court's judgment under the Uniform Parentage Act (UPA) (Fam. Code, § 7600 et seq.)*fn1 that M.G.'s former same-sex partner, L.M., is a second parent to the child that M.G. adopted during their relationship (the Child). Based on various statutory arguments, M.G. contends that L.M. may not be determined to be the Child's second parent because M.G. obtained her parental status through a single parent adoption decree, which, according to M.G., should bar any person from being determined to be the Child's second parent. As we will explain, we conclude that M.G.'s arguments are without merit and, accordingly, we affirm the judgment.



M.G. and L.M., who are both women, lived together as same-sex partners from 1998 to the end of 2003, but were not registered domestic partners. (§ 297 et seq.) Their household included M.G.'s son, born in 1992, and L.M.'s daughter, born in the mid-1980's.

M.G. desired to have another child, and during her relationship with L.M., M.G. unsuccessfully attempted to conceive a child through artificial insemination with the same sperm donor she used for her son in 1992. According to L.M., she suggested that M.G. consider adoption. As L.M. testified, "We were a couple at the time, and we were a family, and we talked about having a third child in our life."

In 2000, M.G. learned of an opportunity to adopt a child from a pregnant woman in Tijuana, Mexico, who wanted to place her child for adoption when it was born. M.G. met with the birth mother several times in Mexico and agreed to an adoption. After the initial meeting, L.M. accompanied M.G. to at least one of the successive meetings with the birth mother. To avoid the complexity of an international adoption, M.G. arranged for the birth mother to move to California to give birth and paid for the birth mother's living and medical expenses.

The Child was born in November 2000 and came to live in the household with M.G. and L.M. M.G. took maternity leave from work for the Child's first three weeks of life, and according to L.M., she took leave from work to care for the Child during the next three weeks. M.G. and L.M. both participated in caring for the Child in their household.

M.G. formally adopted the Child in October 2001 by obtaining an adoption decree from the court. L.M. was present at the adoption hearing. According to L.M., at the time of M.G.'s adoption of the Child the plan was for the couple to register as domestic partners, followed by L.M.'s eventual adoption of the Child in a stepparent adoption. (See § 9000.)*fn2

The couple's relationship ended in 2003 when the Child was a little over three years old. According to L.M., part of the reason the relationship ended was that M.G. would not agree to enter into a domestic partnership with L.M. so that L.M. could participate in a stepparent adoption of the Child. L.M. testified that she consistently asked for M.G. to cooperate in obtaining legal recognition of L.M.'s parental relationship with the Child, but M.G. refused to do so.

After L.M. and M.G. ended their relationship, the Child resided primarily with M.G. but regularly spent the night at L.M.'s house several times a month. The Child had his own room in L.M.'s home, and although M.G.'s and L.M.'s testimony differed somewhat as to the number of nights that the Child spent with L.M., it appears that at least as the Child grew older, he generally spent one weekday night and one weekend night with L.M. on a weekly basis. In addition the Child regularly traveled on vacations with L.M., and L.M. cared for the Child when M.G. was out of town.

The Child calls L.M. by the name "mom" or "mommy," and L.M. refers to the Child as her son. L.M.'s friends and co-workers and the parents at the Child's school understand the Child to be L.M.'s son.

L.M. testified that although she regarded herself as the Child's second mother, she did not file a petition to determine her parentage of the Child for several years after breaking up with M.G. in 2003 because (1) lawyers at the time advised her of the lack of legal precedent regarding parentage determinations in the case of a same-sex couple; and (2) M.G. was allowing contact with the Child, and she did not want to risk angering M.G., who might retaliate by cutting off her contact with the Child. According to M.G., she allowed regular contact between L.M. and the Child after her relationship with L.M. ended because the Child had lived in the same house with L.M. since his birth and "knew and loved her." As M.G. explained, "The more people that love you the better. [L.M.] loves him. . . . He's been given a gift. . . . I can't just take it away. It would be wrong."

In October 2009, M.G. informed L.M. that she planned to relocate to Europe with the Child for 18 months beginning in July 2010 because M.G.'s registered domestic partner would be temporarily assigned there for her job. L.M. believed that the extended relocation to Europe was not in the Child's best interest. On May 3, 2010, when the Child was nine years old and shortly before the scheduled trip to Europe, L.M. filed a petition to establish a parental relationship with the Child pursuant to the UPA. ...

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