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Jason P. v. Danielle S.

California Court of Appeals, Second District, Fourth Division

March 16, 2017

JASON P., Plaintiff and Respondent,
DANIELLE S., Defendant and Appellant.

         APPEAL from a judgment of the Superior Court for Los Angeles County, No. BF045218 Maren E. Nelson, Judge. Affirmed in part, conditionally reversed in part and remanded with directions.

          Glaser Weil Fink Howard Avchen & Shapiro, Fred D. Heather; Kirkland & Ellis, Danielle Sassoon, Michael Shipley and Jay P. Lefkowitz for Defendant and Appellant.

          Arnold & Porter, Sally Pei, Said O. Saba, Jr., and Lisa S. Blatt for Choice Moms LLC as Amicus Curiae on behalf of Defendant and Appellant.

          Fred Silberberg Professional Corp., Fred Silberberg; and Edward J. Horowitz for Plaintiff and Respondent.

          WILLHITE, J.

         This long-running case involves the effort by a sperm donor (Jason P.) to establish that he is a legal parent of a child conceived through in vitro fertilization (IVF) using his sperm, and that he is entitled to joint legal and physical custody of the child with the child's mother (Danielle S.). The case is before us on appeal for the second time. The first appeal was taken by Jason from the family law court's judgment in favor of Danielle on Jason's petition to establish parental relationship. The family law court found that Family Code[1] section 7613, subdivision (b) (hereafter, section 7613(b)) precluded Jason from establishing parentage.[2] We reversed, holding that section 7613(b) “only... preclude[s] a sperm donor from establishing paternity based upon his biological connection to the child, and does not preclude him from establishing that he is a presumed parent under section 7611[, subdivision (d) (hereafter, section 7611(d))] based upon postbirth conduct.” (Jason P. v. Danielle S. (2014) 226 Cal.App.4th 167, 176 (Jason P. I).) We remanded the matter with directions to the family law court to conduct further proceedings to determine whether Jason qualifies as a presumed parent under section 7611(d). (Id. at p. 181.)

         As directed, the family law court conducted those proceedings, and concluded that Jason met the requirements to be a presumed parent. The court then conducted further proceedings on custody and awarded Danielle sole legal custody for six months, after which Danielle and Jason would exercise joint legal custody, provided that Jason satisfied certain conditions. The court also ordered a “step-up plan” to a shared parenting arrangement, and ordered Jason to pay child support, retroactive to the date of entry of the court's statement of decision regarding parentage.

         In this second appeal, Danielle challenges the family law court's finding that Jason is a presumed parent and the court's custody order. She contends the court (1) erred by misapplying the statutory requirements for presumed parentage and improperly relied upon Jason's biological connection in finding him a presumed parent; and (2) improperly awarded Jason custody in contravention of section 3044, which creates a presumption against awarding custody to a parent who has perpetrated domestic violence. We conclude the family law court correctly applied the law governing presumed parentage, and its finding that Jason is a presumed parent is supported by substantial evidence. We also conclude, however, that the court's award of joint custody was premature because it had not yet received evidence that Jason completed the requirements the court deemed necessary to rebut the section 3044 presumption.

         Accordingly, we affirm the judgment as to the parentage finding, but conditionally reverse the judgment as to the award of custody. On remand, the family law court is directed to conduct limited proceedings to determine and make findings as to whether Jason satisfied the conditions the court deemed necessary to rebut the section 3044 presumption. If the court determines he has done so, it may reinstate its award of joint custody. If the court determines he has not done so, it shall enter a new custody order, taking into account that the section 3044 presumption has not been rebutted.


         The family law court issued very detailed statements of decision regarding parentage and custody that included extensive findings of fact and credibility determinations. Our discussion of the facts is based upon those findings, which were supported by substantial evidence. (See R.M. v. T.A. (2015) 233 Cal.App.4th 760, 780 [when reviewing a court's finding of presumed parentage, “[w]e view the evidence in the light most favorable to the ruling, giving it the benefit of every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] We defer to the trial court's credibility resolutions and do not reweigh the evidence”].)

         A. Events Leading Up to the Birth of the Child

         Danielle is a certified rolfer.[3] She met Jason, who is an actor, through a client of hers in 2002. She and Jason began a romantic relationship about six months after they met. In 2005, she sold her condominium and moved into Jason's home in Santa Monica.

         From November 2006 to December 2007, Danielle and Jason tried to conceive a child. Danielle became pregnant at one point, but miscarried at six weeks. They tried to conceive after the miscarriage, first by natural methods and then using fertility procedures. In 2007, Danielle had two intrauterine insemination (IUI) procedures in New York using Jason's sperm.[4] Both were unsuccessful. In September or October 2007, Jason had a surgical procedure to increase his sperm count.

         By May 2008, their relationship was strained, and Danielle moved out of Jason's home and into a rental property; Jason paid the rent on the property. Danielle testified that she moved out because Jason said he no longer wanted to be a father. Jason testified he just asked her to wait.[5] A month later, Danielle purchased sperm of an anonymous donor from a sperm bank; she told Jason about her purchase at some point afterwards. At the time she purchased the sperm, she understood that she would have all the parental rights and responsibilities related to any child conceived with that sperm. Sometime later, in the fall of 2008, she found a website called “Choice Moms” or “Single Mothers By Choice” that had a link to a page describing the rights of women in California who conceive using the sperm of a known donor; she understood that under California law, the known donor would not have rights as a father.

         In September 2008, Danielle bought a home near Jason's in Santa Monica. She was staying with family on the east coast at the time she bought the property. When she came back to California, she stayed at Jason's house, and lived there for the first six months of 2009. She testified that she stayed at Jason's house because there was construction going on at her newly-purchased home, but she told her cousin in an email that she “moved back in with him temporarily for us to try to figure things out.”

         In November 2008 or January 2009, Jason gave Danielle a long handwritten letter.[6] In it, Jason discussed his inner turmoil and emotional struggles, and the troubles in their relationship. Toward the end of the letter he wrote: “There is no doubt in my mind that you were meant to be a mother. You know it and feel it so deeply. There is also no question that you would and will be a wonderful one. You will give all the love you never had, plus all the love you've learned, lived, and shared. You are ready to be a mom right now. Whether due to time, or need, once again it doesn't matter - time says now. I am not ready to be a father. Can I be? Of course. I can assume the responsibilities, and march along as I always have. But I want to be excited about the idea, the process, the anticipation. I don't want to be grudgingly brought into being a daddy. And I say this knowing that maybe I'll never be so sure and at ease with the commitment. Maybe it's not my lot. But I would hope that it could be. I really do. I hope my fucked up life and misaligned choices have not ruined me. I truly do. I just know that I need to have my best effort at clarity, if not surety, to have the chance of family, and being fulfilled as a creative force.... I need to go away for several months and try and write something that can fix me.... I know you can't wait. I don't want you to.... I have to find my way Dan. It's only then that I can give to anybody. I don't know if I'll ever be a dad. But I know if I ever had a kid, and I needed someone to care and raise them, I would trust you. Everything you are. I want [you] to know that if you want to use my sperm, you have my blessing. It's all I can give you right now. Maybe ever. I'm so lost. Maybe in a few months - I'll be clear. Maybe I'll have needs and vigor to cho[o]se them. And maybe I'll feel the same way. Alone, needing space, or will have changed in ways unknown. But what I will know, is that I was able to give a gift to you. One that one day I may be able to feel and embrace. And if not, I will know that you are fulfilled in that part of your journey - and a piece of me is living through you and in the world. It just has to be between you and I. That's all I ask.”

         In January 2009, Danielle underwent an IUI procedure using sperm that Jason provided, rather than using the anonymous donor sperm. The procedure was unsuccessful.

         In March 2009, Danielle underwent IVF using Jason's sperm. Jason took her to California Fertility Partners for the egg retrieval on March 6, and took her back for the transfer of the embryo on March 9. The IVF resulted in a viable pregnancy.

         The only people Danielle initially told about her pregnancy - and that Jason was the biological father - were her brother, her sister Elisabeth (Liz), and her two closest friends, Ellen Rapoport and Joshua Weinstein, but she asked each of them not to reveal who the biological father was. She later explained to her cousin that Jason “didn't want anyone to know because he's so private and self-conscious/neurotic.” Although Jason denied to some people that he was the father of Danielle's baby during the pregnancy, he did tell his close friend Bryony Atkinson and her husband Scott Seiver, his personal trainer Flavio de Olivira, and Cynthia Burton, the mother of his former girlfriend, that Danielle was pregnant with his baby.

         After the IVF, Danielle stayed in the guest room at Jason's house until she was approximately 17 or 18 weeks pregnant. Jason was gone for much of that time. However, he was home when, at around 10 weeks, Danielle started to bleed, and he took her to the emergency room. She was put on bed rest for seven or eight weeks, and stayed at Jason's house until she was able to work again. At that point, she moved into her home.

         Danielle made all the arrangements for the baby's room in her home, except buying a crib; her grandmother bought the crib and had it delivered to Jason's home because she believed it was bad luck to send baby items to Danielle's home before the baby was born. Danielle also made arrangements for a doula and a night nurse, and selected a pediatrician. Her sister Liz set up a registry for gifts for the baby. Jason was not involved in any of those activities, nor did he attend any childbirth classes with Danielle.[7] However, shortly before the baby was born, Jason sent an email to Danielle telling her to “make sure [her] midwife and nurse have all been vaccinated for swine flu. [I]f not they can't be used.” Jason and Danielle also discussed names for the baby. Danielle chose the name Gus Theodore; Gus was for one of Danielle's family members, and Theodore was for one of Jason's family members.

         B. The Period From Gus' Birth to His First Birthday

         Gus was born in early December 2009. Shortly before Gus was born, Jason discovered that a caretaker for his grandmother, who lived in New York and with whom he was very close, was stealing from her. Because Jason was responsible for his grandmother's care, he had to fly to New York to take care of the situation and find a new caretaker.

         While Jason was in New York, Danielle went into labor. Liz took Danielle to the hospital and stayed with her for most of the nearly two days in which Danielle was in labor. Ultimately, Danielle had an emergency caesarean section. Jason flew back to Los Angeles, but did not arrive in time for the birth; he got to the hospital shortly after Danielle came out of the recovery room. Jason did not hold or ask to hold Gus - he testified he was overwhelmed and afraid of hurting him - and did not take any photographs or ask to have any photograph taken of him with Gus.

         Jason stayed at the hospital for about a half-hour. He did not tell anyone at the hospital that he was Gus' father, did not make arrangements to have his name put on the birth certificate, and did not sign a voluntary declaration of paternity. He testified that he did not put his name on the birth certificate for privacy reasons. He explained he wanted anonymity for his child as long as possible, because he was a celebrity and grew up in a celebrity family (both his father and grandfather were quite famous, and appeared in theater, television, and movies), and he found the attention that brought to be extremely intrusive. He did, however, tell all of the people that were close to him about Gus' birth.

         Liz drove Danielle and Gus home from the hospital. Jason testified that he did not drive them because he had to go pick up Danielle's favorite bagels for her, get celebratory balloons, and walk the dogs to prepare for her arrival.

         When Gus was first brought home from the hospital, Liz and a night nurse assisted Danielle. Jason spent time at Danielle's house in the days after Gus was born, to help burp Gus and tuck him in in the evening. When Gus was eight days old, Jason took Danielle and Gus to a medical appointment to have Gus circumcised. For Gus' first Christmas, a few weeks after Gus was born, Jason brought a Christmas tree and decorations to Danielle's house, and gave Gus a “onesie” that had “Baby's First Christmas” written on it.

         During 2010, Jason often was away from Los Angeles; he went to New York every four or five weeks to take care of his grandmother and conduct business, and was in Canada for work for three weeks. Although Jason testified that he went to Danielle's house to see Gus almost every day that he was in Los Angeles, [8] Liz, who helped Danielle with Gus at least three or four times a week, testified that she saw Jason with Gus only sporadically. Similarly, Danielle's friend Joshua Weinstein, who saw Danielle at her house almost weekly, testified that he rarely saw Jason there in 2010, and did not see Jason do anything that suggested he was parenting Gus; instead, he usually was watching television or on the computer.

         Danielle and Gus, accompanied by Liz, went to New York three times in 2010. They did not stay at Jason's apartment, but instead stayed at Danielle and Liz's father's home. Danielle and Gus visited with Jason while they were there, and went to parks with him. Danielle also took Gus to visit Jason's grandmother, and took a photograph of Gus with her.

         Throughout Gus' first year, Jason and Danielle exchanged emails with information about raising children, vaccinations, and events in Gus' development, and occasional requests from Danielle for Jason to babysit Gus. In late June 2010, Danielle decided to “take time away” from Jason while he was in Canada for work; they agreed they were not going to talk while he was gone. Danielle told Weinstein that Jason was “only worried about not seeing Gus - even though I told him I would never keep Gus from him.”

         Their time away from each other was short-lived. In August 2010, Jason and Danielle were at the Brentwood Country Mart with Gus when they ran into Erin Dignam, a longtime friend of Jason (who also had known Danielle for 11 years). Dignam and her two daughters spent most of the day with Jason, Danielle, and Gus. Dignam assumed that Jason was not Gus' biological father because Danielle had told her in 2008 that she and Jason had fertility problems. Based on Jason and Danielle's behavior, however, she believed that Jason was Gus' father.

         C. The Period From Gus' First Birthday to the Filing of the Petition

         In December 2010, Jason attended Gus' first birthday party at Danielle's house. In December 2010 or January 2011, Jason and Danielle resumed their romantic relationship, and Jason began working in New York on a Broadway play. The play started rehearsals in January 2011, opened in March 2011, and ran through mid-May 2011.

         In early January 2011, Danielle's father sent Danielle an email expressing concern about her renewed relationship with Jason, which her father worried might be an abusive relationship. Danielle responded that she was not in an abusive relationship and said that she “want[s] (and intend[s] for) Gus to have two full-time and fully-devoted parents.”

         Jason got to New York in January 2011, and hired Dena Douglass as his assistant. When Jason interviewed Douglass for the job, he asked her if she had any experience with children; Douglass told him her previous job had been as a nanny. Jason explained that he had a son, Gus, and that her job duties would include taking care of Danielle and Gus when they were in town. They discussed various things regarding Gus, such as items that would be needed while Gus was there, food-related issues, and setting up the house in preparation for his visits. The day after she interviewed for the job, Douglass went to Jason's apartment, and Jason showed her around. She saw a jogging stroller, baby clothing, diapers and baby ointment, a child's toothbrush, toothpaste and shampoo, a crib, a baby toilet, a high chair, and a gate, along with children's books and toys. She also noticed photographs of Gus, and of Jason and Gus, in both bedrooms.

         Danielle and Gus visited Jason in New York four or five times while Jason was there for the play, staying for about a week each trip.[9] Jason paid for their airplane tickets, and also gave Danielle money to make up for the fact that she had to miss work. Their first visit was in late January 2011. Douglass met them on their second visit, in February. When Douglass arrived at the apartment the first morning of their visit, Danielle and Gus were there, and Jason was feeding Gus breakfast. Over the course of their visit, Douglass observed Jason feeding Gus, playing with him, and taking Gus to the park. Jason called Gus his son, and Gus called him “Dada”; Danielle also referred to Jason as “Dada” and encouraged Gus to do so.

         Danielle and Gus returned to New York to attend the opening night of Jason's play in early March 2011. On March 16, while back in Santa Monica, Gus became ill and was hospitalized for four days. Jason was doing eight performances a week in the play at that time; the only day without a performance was Monday. He spoke with Danielle more than 50 times during Gus' hospitalization, and asked if he should come home; Danielle assured him that Gus was stable, and he did not need to come home. He also called his friend Erin Dignam because she had a lot of doctors in her family, and asked for her help; Dignam called Danielle to offer her assistance.

         Danielle told Jason that Gus was going to be released from the hospital on Sunday, March 20, 2011. Jason decided to fly from New York to Los Angeles after the Sunday matinee performance. He arrived in Los Angeles just before midnight, and went directly to Danielle's house, arriving at around 12:30 a.m. on Monday, so he could be there when Gus woke up. He spent the entire day with Gus, and took a flight back to New York on Tuesday morning; when he landed in New York, he went directly to the theater to be there in time for that evening's performance.

         Danielle and Gus went to New York again in mid-April 2011. During that trip, Jason arranged for Gus and Danielle to visit the set of his play. There was a trophy that was the centerpiece of the play, and each of the actors was allowed to have the name of a family member engraved on it. Jason chose “Gus Theodore” for his engraving. Jason was photographed showing Gus the trophy. There also was a video taken onstage, in which Danielle referred to Gus as a “chip off the old block.” When she and Gus were back in Santa Monica, Danielle made a video of Gus looking at the playbill from Jason's play and asking him to point to “Dada” in the photograph on the cover. She also made a video of him looking at a photograph of Jason's hands while she asked him if those hands were “Dada's” hands.

         Jason returned to Los Angeles after the play closed, and spent several days and nights at Danielle's house in June 2011. During that time, Gus was attending a toddler program at a preschool in Santa Monica, The First School. The daughter of Jason's friend Kristen Prouty also attended the program. Prouty testified that she observed Jason participate in “Circle Time” at the school, during which the parents (mostly mothers) sat in a circle and asked the teachers about child development and issues they were going through with their children.

         Throughout the rest of 2011, Jason continued to go back to New York every four or five weeks to take care of his grandmother. In addition, he was away for much of the month of July, working on a show in Chicago.

         Danielle testified that in July and August of 2011, Jason started to become more abusive and began “to insert himself into how [she] was parenting and raising [Gus].” On July 5, he made anti-Semitic remarks to Danielle, who is Jewish, and then left for Chicago. Despite this, Danielle emailed him six days later, and again a couple of weeks later, telling him that she and Gus missed him. On July 29, she sent him an email telling him she was looking forward to him being back in Santa Monica for many reasons, one of which was that it would make it easier to wean Gus.

         Jason was back in Santa Monica in August 2011. Around August 6 or 7, Jason made another anti-Semitic remark to Danielle in Gus' presence, and made another in late September during Circle Time at Gus' toddlers program in front of some teachers, parents, and children.

         Jason, Danielle, and Gus went on a vacation together to Hawaii in September 2011. In connection with that trip, Danielle emailed a travel agent, telling her that she would “like to plan a trip with my boyfriend Jason and our 20 month old son.” The three of them were photographed by paparazzi during that trip.

         In late September 2011, Danielle and Jason argued about how to help Gus sleep through the night; Danielle did not like that Jason had Gus sleep all night on her couch with him. Jason sent an email to Danielle, telling her he was “extremely upset, ” and complaining that she was “us[ing] Gus and the implicit threat of access to him, as a power chip in [their] relationship.” In her response, Danielle suggested that they return to therapy, and said: “I will not allow myself to be strung along without a proper discussion about what our plans are - it seems like that's what you're avoiding every time you go to NYC to see your grandma and extend your stay - and I find it dishonest. You want to live your double life, but you expect me to be always available and accountable.... The arguments that we have about Gus are arguments that any other couple with children might have, but they get complicated by the lack of definition that continues to plague our relationship.... [W]hen [Gus] cries for me to pick [him] up at the park sometimes and [you] say to me don't pick him up, I listen to you. I respect your plan and [know] that we as parents need to not undermine each other cuz then Gus will play us against each other and feel like there is no order or structure. Even tho we may have our own styles of parenting, we still have to not undermine one another.”

         In November 2011, Jason and Danielle took Gus to get his first haircut. Gus sat on Jason's lap while getting his haircut, during which Gus asked “Dada” to play with a toy alligator that was next to the chair. Jason also attended some of Gus' appointments with his pediatrician in October and November, and was identified in the doctor's records as Gus' father.

         In early November, Danielle and Jason had an argument about what Jason fed, or attempted to feed, Gus one evening. Danielle sent an email to Jason, explaining why she did not want Jason to feed Gus what he tried to feed him. She noted, “You've made it clear you think I don't know what I'm talking about when it comes to this. I know you disagree, but I'm beginning to think you're doing this just to exert power/control.” She told him she felt he treated her in an abusive way, speaking with contempt and bullying her. In Jason's response, he accused Danielle of “pulling rank” on him when it came to parenting decisions. Danielle responded, “Pull ‘rank'? Bullshit. I am [G]us' mama and you are his dada. How does ‘rank' factor in? You see yourself in competition with [D]ira[10] as well. I didn't anoint myself boss of Gus. I'm his primary caretaker. You don['t] want to be.”

         Gus' second birthday was celebrated in early December 2011. Jason and Danielle planned a party for him. Although the invitation that was sent out listed only Danielle as the host, Jason made the arrangements for the birthday cake, the music, and other entertainment. A video taken at the party shows Jason holding Gus as Gus blows out the candles on his cake.

         Shortly after Gus' birthday, Jason and Danielle met with the preschool director at Little Dolphins School and toured the school. The director understood that Danielle was Gus' mother and Jason was his father. Danielle wrote a note to the director thanking her “for taking the time to meet with Jason and me today (and for feeding us yummy ...

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