Navigating a Child Custody dispute can be distressing as the outcome is often integral to your child’s safety, sense of security, development, and overall well-being. When a parent is navigating this with an adoptive child, further questions regarding their rights and limitations may arise. It is important to note that, often, your rights as an adoptive parent are the same as those of birth parents. The court’s priority is the best interest of the children which is prioritized ahead of many factors, including the immigration status, sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative. (Cal. Fam. Code § 3040). The specific impact adoption has on your case depends on your family-specific dynamic.
In a child custody proceeding, the following factors take precedence in the court decision:
- The Best Interest of the Child, the court will choose a custody arrangement it believes will provide children with the best environment for their emotional, psychological, and physical needs.
- The nature and extent of the child’s relationships with the birth parent, the guardian or adoptive parent, and any siblings or half-siblings. Courts give great weight to the extent of the child’s existing bonds and attachments.
- The stability and continuity of the child’s living situation. Particularly, courts prioritize the harm that might result from removing the child from a stable environment where they have formed significant attachments. Adoption of Emilio G., 235 Cal.App.4th 1133 (2015).
- The adoptive parent’s ability to meet the child’s needs, including their commitment and capability to provide a safe, stable, and nurturing environment. 22 CCR § 35183.
Establishing Parentage and Legally Enforceable Parental Rights
A person is presumed to be the natural parent when they receive the child into their home and openly hold the child out as their natural child. Cal. Fam. Code § 7611 (West). The purpose behind the presumed parent designation is to distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not; the premise is that an individual who has demonstrated a commitment to the child and the child’s welfare, regardless of whether he is biologically the father, is entitled to the elevated status of presumed fatherhood. A person who claims entitlement to presumed parent status has the burden of establishing by a preponderance of the evidence that they received the child into their home, and held the child out as their natural child. However, once the statutory presumption of parenthood arises, it may be rebutted in an appropriate action only by clear and convincing evidence.
In the case S.Y. v. S.B., the court found that while the adoptive mother, may not have intended for the alleged mother to obtain any legal rights to the children, the record is replete with evidence that she not only allowed but encouraged, the alleged mother to co-parent both children from the beginning. S.Y. v. S.B., 201 Cal.App.4th 1023, 1035 (2011). Below is a list of factors the California Court of Appeals found persuasive to establish parentage when the romantic partner of an adoptive mother, hereinafter the “alleged mother” filed an action seeking to be declared the second, same-sex parent of the two children.. S.Y. v. S.B., 201 Cal.App.4th 1023, 1025 (2011).
- Prior to adopting the children the adoptive mother asked the alleged mother to pay for invitro fertilization which the alleged mother eventually agreed to.
- The alleged mother encouraged the adoptive mother to adopt the children with the understanding she would co-parent.
- The alleged mother voluntarily accepted the rights and obligations of parenthood since the children were born.
- Although the alleged mother maintained a separate residence, the alleged mother was in a committed same-sex relationship with the adoptive mother and spent most nights at the home of the adoptive mother.
- At the time that the adoptive mother sought to conceive a child and then chose to adopt the first child, the alleged mother helped care for the child.
- The alleged mother remained active in the first child’s life when the couple split except when the adoptive mother interfered with the alleged mothers’ efforts.
- The alleged mother helped care for the adoptive mother’s second adopted child from the time of her adoption.
- The alleged mother provided financially for the children and named them as her beneficiaries on “everything she had” including life insurance and mutal funds.
- The alleged mother took family vacations and engaged in family activities with the adoptive mother and the children.
- The alleged mother established a college savings for the child and made monthly contributions.
- The alleged mother allowed the adoptive mother to give one of the ch ildren the alleged mothers middle name.
- Public policy favors children having two parents.S.Y. v. S.B., 201 Cal.App.4th 1023, 1038 (2011).
Seeking Legal Representation
Ultimately, there is no one-size-fits-all approach to navigating a case where an adoptive parent is seeking custody of a child. If you are seeking a legal remedy regarding your family an experienced attorney can help you. Contact the law office of Darshann Wienick.
