CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
Plaintiff and Appellant,
(Super. Ct. No.
Defendant and Respondent.
Appeal from a judgment of the Superior Court of San Joaquin
County, Xapuri B. Villapudua, Judge. Reversed with directions.
Chapman, Popik & White, Susan M. Popik and Merri A. Baldwin
for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
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)).1
On appeal, appellant contends the trial court misapplied the law
Undesignated statutory references are to the Family Code.
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.
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
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
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
After the minor was born, respondent and the minor lived
with respondent‟s mother until the minor was three months old,
The facts are taken in large part from the trial court‟s
written opinion, wherein the court summarizes the evidence taken
at the evidentiary hearing. There is no reporter‟s transcript.
when they moved into appellant‟s home.
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.
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
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
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 wrote, “It made me think we
made this loving little girl & she loves us both dearly.”
also told appellant, “You want to know something funny?
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.
about it some more when you come home for Christmas K [sic]?
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
Brian never tried to establish paternity and he provided
no financial support for the minor.
In April 2008 appellant and respondent‟s relationship
The minor was nearly five years old.
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.
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
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
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
The minor did not call R.C. “Grandma,” but simply
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
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.
remembered that appellant “acted as [the minor‟s] other mother,”
and he too thought of them “as a family.”
Like Heather, David
also heard appellant refer to the minor as her daughter and
respondent never corrected her.
Appellant‟s supervisor from work also testified that
appellant called the minor “her daughter.”
In support of her position, respondent presented testimony
from her mother, her sister, one of her friends, and the minor‟s
Each of respondent‟s witnesses testified that
“appellant was referred to as the minor‟s Godmother and nothing
She was not considered her other mother.”
Respondent also testified at trial.
“adamant” that she did not consider appellant to be the minor‟s
Respondent admitted appellant “was there for [the
minor] since day one,” but she never intended for appellant to
be the minor‟s other parent.
Respondent always assumed
appellant would be the one to take care of the minor if
something happened to respondent, but appellant was only the
minor‟s godmother; appellant baptized the minor and the minor
called her “Nina” for “godmother.”
She remembered appellant
would “get angry” when they discussed the fact appellant had no
legal rights to the minor, and they discussed appellant‟s
adopting the minor but never agreed to pursue it.
Respondent had not planned for appellant to cut the minor‟s
She clarified that appellant did sign up the
minor for kindergarten but only because respondent had to be at
work, and she did not authorize appellant to list herself as a
legal guardian on the kindergarten registration form.
Respondent admitted she and appellant had a long term,
committed relationship, with some stops and starts.
It took her
a year to tell her family that the relationship between her and
appellant had become sexual.
After that, respondent and
appellant revealed the sexual nature of their relationship only
to close friends and family.
The matter was taken under submission.
Pending the trial
court‟s decision, the court ordered visitation between appellant
and the minor on alternate Saturdays from 9:00 a.m. to 7:00 p.m.
Nearly three months later, the court issued a written ruling
that appellant had failed to prove by a preponderance of the
evidence that she was a presumed parent under section 7611(d).
The trial court based its decision on the following:
“[Appellant] and [respondent] did not register as domestic
partners either before or after the birth of [the minor].
did not participate in a commitment ceremony.
They did not make
a conscious decision to have a child and raise it as theirs
before [the minor] was born and were in fact only very good
friends when [the minor] was born.
They did not live together
immediately after [the minor] was born and waited to tell their
families about their relationship.
[Appellant] and [the minor]
[sic] did not live together continuously throughout their
The families of both believed they were simply
good friends during the first part of [the minor‟s] life.
did not give [the minor appellant‟s] surname.
She was not
listed on the birth certificate and [appellant] did not claim
[the minor] on her taxes.
[Respondent], the natural biological
mother of [the minor] never intended [appellant] to be another
She was [the minor‟s] Godmother and she was
[respondent‟s] long-term girlfriend.”
The court reserved jurisdiction to make any findings
Appellant appeals from this order.
On appeal, appellant argues the trial court applied the
wrong analysis under the UPA in finding she is not a presumed
parent of the minor (now eight years old), and that “the
uncontradicted evidence established that [she] satisfied her
burden of proof under section 7611(d) as a matter of law.”
We review the trial court‟s factual findings under the
substantial evidence standard.
(Charisma R. v. Kristina S.
(2009) 175 Cal.App.4th 361, 368-369 (Charisma R.).)
that standard, we must consider all of the evidence in the light
most favorable to the prevailing party, giving it the benefit of
every reasonable inference, and resolving conflicts in support
of the judgment.
It is not our task to weigh
conflicts and disputes in the evidence; that is the province of
the trier of fact.
Our authority begins and ends with a
determination as to whether, on the entire record, there is any
substantial evidence, contradicted or uncontradicted, in support
of the judgment.‟”
(Id. at p. 369.)
discretionary order that is based on the application of improper
criteria or incorrect legal assumptions is not an exercise of
informed discretion, and is subject to reversal even though
there may be substantial evidence to support that order.
(Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115,
Whether the trial court erred in determining that appellant
is not a presumed parent of the minor is governed by the UPA.
The UPA defines the “„[p]arent and child relationship‟” as “the
legal relationship existing between a child and the child‟s
natural or adoptive parents . . . .”
Under the UPA,
a woman is presumed to be the natural mother of a child if she
“receives the child into [her] home and openly holds out the
child as [her] natural child.”
“A [woman] who
claims entitlement to presumed [mother] status has the burden of
establishing by a preponderance of the evidence the facts
supporting [her] entitlement.
. . . The Family
Code section 7611(d) presumption, once it arises, „may be
rebutted in an appropriate action only by clear and convincing
(In re J.O. (2009) 178 Cal.App.4th 139, 147-148,
quoting § 7612, subd. (a).)
To be a presumed parent, a person does not have to be
married to the other parent (Johnson v. Calvert (1993) 5 Cal.4th
84, 88-89) or registered as his or her domestic partner
(Elisa B., supra, 37 Cal.4th at pp. 114, 125).
parent need not have ever lived with the child‟s other parent
(In re A.A. (2003) 114 Cal.App.4th 771, 784 (A.A.)) and may not
have even known the other parent (In re Salvador M. (2003)
111 Cal.App.4th 1353, 1355-1356, 1358 (Salvador M.)).
Although section 7611 speaks in terms of fathers, the UPA
expressly provides that the provisions applicable to determining
a father and child relationship shall be used to determine a
mother and child relationship “insofar as practicable.”
(§ 7650; see also Elisa B. v. Superior Court (2005) 37 Cal.4th
108, 119-120 (Elisa B.) [“„Though most of the decisional law has
focused on the definition of the presumed father, the legal
principles concerning the presumed father apply equally to a
woman seeking presumed mother status.‟ [Citation.]”].)
Nevertheless, a presumed parent is not just a casual friend
of the other parent, or even a long-term boyfriend or
girlfriend, but someone who has entered into a familial
relationship with the child:
someone who has demonstrated an
abiding commitment to the child and the child‟s well-being,
regardless of his or her relationship with the child‟s other
(See In re Sabrina H. (1990) 217 Cal.App.3d 702, 708
(Sabrina H.); see also In re T.R. (2005) 132 Cal.App.4th 1202,
The evidence adduced at a trial on presumed parenthood
status must therefore be considered for the purpose of
determining an alleged parent‟s commitment to the minor child
and that child‟s welfare.
Indeed, that is the very purpose of
the UPA -- to distinguish those who have demonstrated a
commitment to the child regardless of biology and grant them
the “elevated status of presumed [parenthood].”
132 Cal.App.4th at pp. 1211-1212.)
Such purpose furthers the well-established policy in
California that “whenever possible, a child should have the
benefit of two parents to support and nurture him or her.”
(Librers v. Black (2005) 129 Cal.App.4th 114, 123.)
the Supreme Court in Elisa B.:
As noted by
“„There is a compelling state
interest in establishing paternity for all children.
Establishing paternity is the first step toward a child support
award, which, in turn, provides children with equal rights and
access to benefits, including, but not limited to, social
security, health insurance, survivors‟ benefits, military
benefits, and inheritance rights. . . .‟
the value of determining paternity, the Legislature implicitly
recognized the value of having two parents, rather than one, as
a source of both emotional and financial support, especially
when the obligation to support the child would otherwise fall to
(Elisa B., supra, 37 Cal.4th at p. 123, quoting
With these legal standards in mind, we review the facts of
Here, the trial court ruled that appellant failed to prove
by a preponderance of the evidence that she was a presumed
parent under section 7611(d).
The court did not explain whether
appellant failed to prove she received the minor into her home
or failed to prove she held out the minor as her natural child.
Accordingly, we consider both issues.
The first legal issue presented to the court under
section 7611(d) is whether appellant received the minor into her
It is uncontroverted that when the minor was three months
old, she (and respondent) moved into appellant‟s home.
is uncontroverted that when appellant left town to serve in the
military, she moved the minor (and respondent) into appellant‟s
Rather than consider this uncontroverted evidence, however,
the trial court relied on the fact that appellant and respondent
did not “live together immediately after [the minor] was
born . . . .”
Whether appellant and respondent ever lived
together is inessential to the legal question presented under
Indeed, a person can obtain presumed parent
status without ever living with the other parent.
Salvador M., supra, 111 Cal.App.4th at p. 1357 [minor‟s half
sister found to be presumed parent never lived with minor‟s
father]; see also A.A., supra, 114 Cal.App.4th at p. 784
[de facto father found presumed father though he never lived
with minor‟s mother].)
The essential consideration is whether
appellant received the minor into her home, which she undeniably
Moreover, nothing in section 7611(d) requires appellant to
have received the minor into her home immediately after the
minor‟s birth, only that appellant did receive the minor into
her home -- a fact that is undisputed.
Thus, on this record, we
conclude appellant received the minor into her home and
satisfied the first element required to establish presumed
To obtain presumed parent status, appellant was next
required to prove by a preponderance of the evidence that she
held out the minor to be her natural child.
appellant has no genetic connection to the minor “does not
necessarily mean that she did not hold out the [minor] as her
„natural‟ [child] under section 7611.”
37 Cal.4th at p. 120.)
(Elisa B., supra,
In In re Nicholas H. (2002) 28 Cal.4th
56 (Nicholas H.), the Supreme Court found the alleged father to
be a presumed parent despite his admission that he was not the
child‟s biological father.
Consistent with the purpose of the
UPA, determining whether the alleged parent has demonstrated a
commitment to the child and the child‟s welfare, the court
reasoned that living with a child and treating that child as a
son or daughter creates a relationship between the alleged
parent and the child that is more important to the child than a
(Id. at p. 65.)
relationship “should not be lightly dissolved.”
internal quotation marks omitted.)
In determining whether an alleged parent has held a child
out as his or her natural child, courts look to the conduct of
the alleged parent:
“ . . . whether the man actively helped the
mother in prenatal care; whether he paid pregnancy and birth
expenses commensurate with his ability to do so; whether he
promptly took legal action to obtain custody of the child;
whether he sought to have his name placed on the birth
certificate; whether and how long he cared for the child;
whether there is unequivocal evidence that he had acknowledged
the child; the number of people to whom he had acknowledged the
child; whether he provided for the child after it no longer
resided with him; whether, if the child needed public benefits,
he had pursued completion of the requisite paperwork; and
whether his care was merely incidental.”
132 Cal.App.4th at p. 1211.)
An alleged parent is not required to show each and every
one of these factors exist to obtain presumed parent status.
(Charisma R., supra, 175 Cal.App.4th at p. 376.)
does, however, illuminate a common thread:
whether, through his
or her conduct, an alleged parent has demonstrated a commitment
to the minor child and the minor child‟s well-being, thereby
distinguishing the alleged parent as someone who has entered
into a familial relationship with the child from someone who has
(Sabrina H., supra, 217 Cal.App.3d at p. 708.)
As we explain here, the trial court‟s analysis of the legal
issues presented by appellant‟s petition makes it apparent the
court considered facts irrelevant to determining her commitment
to the minor.
This was error.
Further, to the extent the court
considered relevant facts, the court considered them only in
assessing respondent and appellant‟s relationship, not in
evaluating how their relationship may have demonstrated
appellant‟s commitment to the minor.
This too was error.
First, the trial court wrongly relied on facts regarding
the nature and quality of the relationship between appellant and
Most notably, the court relied on the fact that
appellant and respondent were only close friends when the minor
Whether appellant and respondent had a sexual
relationship when the minor was born is not a relevant factor in
determining appellant‟s commitment to the minor.
factors such as appellant‟s taking respondent to her prenatal
appointments, being respondent‟s Lamaze partner, being in the
room when the minor was born, cutting the umbilical cord, and
taking the minor into her home when the minor was three months
old do demonstrate appellant‟s commitment to the child.
Charisma R., supra, 175 Cal.App.4th at p. 376 [discussing
“types” of factors court may consider under section 7611(d)].)
In Salvador M., the minor‟s adult half sister, Monica, was
his alleged parent.
(Salvador M., supra, 111 Cal.App.4th at
Monica and her half brother shared a mother,
who had died in a car accident, and the minor‟s father was a
married man whose identity was unknown to Monica.
The Court of Appeal found Monica to be Salvador‟s
presumed parent, never asking if she had a sexual relationship
with either of Salvador‟s biological parents.
assume that she did not.
Indeed, we can
Instead, the court appropriately
focused on Monica‟s stalwart commitment to Salvador‟s wellbeing, noting that even Salvador thought Monica was his mother.
(Id. at pp. 1358-1359.)
The court‟s analysis in Salvador M. highlights the trial
court‟s error here.
The relationship between a child‟s alleged
parent and biological parent is legally irrelevant in
determining whether the alleged parent held out that child as
his or her natural child.
The relevant relationship is that
between the child and the alleged parent.
(Cf. Nicholas H.,
supra, 28 Cal.4th at p. 65 [presumed parent status intended to
preserve important relationship created between alleged parent
and child when alleged parent has treated that child as son or
Thus, by focusing its attention on the sexual
relationship between appellant and respondent, the court failed
to analyze the relationship between appellant and the minor.
This was error.
The trial court here also found it relevant that when
appellant and respondent began having a sexual relationship,
they did not immediately inform their families.
when the women told their families they were having sex is not a
relevant factor in determining appellant‟s commitment to the
If appellant had remained unknown to respondent‟s
family, if they never knew appellant was respondent‟s Lamaze
partner, or that she was in the room when the minor was born, or
that she had taken in respondent and the minor when the minor
was still an infant -- such secrecy might speak to appellant‟s
commitment to the minor.
But simply waiting to tell their
families about what was going on in their bedroom does not.
Had appellant and respondent never told their families they
were having sex, the families still would have seen appellant
supporting the minor from the time respondent was pregnant until
respondent prevented her from doing so.
and when appellant and respondent told their families they were
having a sexual relationship is an inappropriate factor to
consider under section 7611(d).
The court also considered it important that appellant and
respondent did not live together continuously throughout their
That factor is not critical in determining
whether appellant held out the minor to be her natural child.
Whether the parents live together and for how long demonstrates
their commitment to each other, not to the child.
supra, 114 Cal.App.4th at p. 784.)
Accordingly, section 7611(d)
does not include a cohabiting requirement.
(A.A., at p. 784.)
Furthermore, for at least some period of time when
appellant and respondent were not living together, appellant was
serving in the military.
During that time, the minor (and
respondent) lived with appellant‟s mother.
secured shelter for the minor with her family while she was away
tends to show appellant was committed to the minor‟s well-being,
not the contrary.
In concluding appellant failed to meet her burden at trial,
the trial court also relied on respondent‟s testimony that she
never intended for appellant to be the minor‟s other mother.
Respondent‟s intent is only relevant if she manifested that
intent through her conduct and precluded appellant from holding
out the minor as her natural child.
It is undisputed that appellant took respondent to her
prenatal appointments, was her Lamaze partner, and was in the
delivery room when the minor was born.
After the minor‟s birth,
appellant took her to her doctor‟s appointments and
Appellant signed up the minor for
kindergarten and listed herself as the minor‟s stepparent or
legal guardian on the registration form.
It also is undisputed that appellant referred to the minor
as her daughter at work and in front of friends and family, and
respondent never corrected her.
When respondent and appellant‟s
relationship ended, respondent agreed to a visitation schedule
with appellant and the minor, and agreed to share the holidays
with her as well.
Accordingly, on this record, respondent‟s “intent” does
little to demonstrate appellant‟s commitment to the minor or
lack thereof, because while respondent may not have intended for
appellant to obtain any legal rights to the minor, the record is
replete with evidence that she allowed, even encouraged,
appellant to coparent the minor from the beginning.
In denying appellant presumed parent status, the trial
court also found it critical that appellant and respondent did
not orchestrate respondent‟s pregnancy in order to raise a child
as their own.
It is a matter of simple biology that, unlike a
heterosexual couple, gay and lesbian couples cannot accidentally
If a gay or lesbian couple wants to have a
child, a great deal of planning and process is required.
if a gay or lesbian couple has made the decision to have a child
and has successfully pursued that process, such circumstances
may be relevant to determining an alleged parent‟s commitment to
The inverse, however, is not necessarily true.
As with heterosexual couples, the failure to plan for a
child does not demonstrate an alleged parent‟s lack of
commitment to that child‟s well-being; it is the alleged
parent‟s conduct after the child‟s conception and birth that
(See, e.g., A.A., supra, 114 Cal.App.4th at pp. 777,
783-784 [alleged father obtained presumed parent status though
he did not plan for mother to become pregnant by another man].)
It was therefore error for the trial court to consider
appellant‟s lack of involvement in respondent‟s impregnation as
evidence that appellant was not committed to the minor‟s wellbeing.
In finding appellant failed to prove she received the minor
into her home and held out the child as her natural child, the
trial court also considered that appellant did not claim the
minor as a dependent on her income tax returns, did not put her
name on the minor‟s birth certificate, and did not give the
minor her surname.
That an alleged parent failed to do any one
of these things may be appropriate evidence to consider in
evaluating an alleged parent‟s commitment to a child.
weight given that evidence, however, will depend upon why the
alleged parent failed to do these things.
For example, if an
alleged parent is precluded by law from claiming a child on his
or her tax returns, the alleged parent‟s failure to do so may
not carry much weight in the analysis.
Thus, on balance, given the impropriety of the other
factors considered, we cannot conclude the court would have
exercised its discretion in the same way given a clear
understanding of section 7611(d) and its purpose.
Accordingly, we remand the matter to allow the trial court
to exercise its discretion with a clear understanding of the law
and determine whether appellant held out the minor to be her
(See Ramos v. Countrywide Home Loans, Inc.
(2000) 82 Cal.App.4th 615, 629 [“Where discretion has been
exercised in a manner that exceeds the applicable legal
standards, the proper remedy is to reverse the order and remand
the matter to the trial court in order to give it the
opportunity to make a ruling that comports with those
If, on remand, the trial court concludes
appellant in fact did hold out the minor to be her natural
child, and thus is a presumed parent, the trial court must then
consider whether this is an appropriate case for rebutting that
The order is reversed and the matter is remanded for
further proceedings consistent with this opinion.
shall recover costs on appeal.
, P. J.