Same-Sex Parents Raising Children May Both Be Recognized As Legal Parents

Same-Sex Parents Raising Children May Both Be Recognized As Legal Parents

By Amy Rose and Cathy Sakimura

Charisma R. v. Kristina S., 175 Cal. App. 4th 361 (2009), [enhanced version available to lexis.com subscribersunenhanced version available from lexisONE Free Case Law], holds that a woman may be a presumed parent of a child born during a same-sex domestic partnership if she receives the child into her home and openly holds out the child as her natural child; and a lack of biological ties does not defeat the presumption. The authors, Amy Rose and Cathy Sakimura, take a close look at this important decision.

“This is the story of Charisma R., the non-biological mother of a baby born to her former partner, Kristina S. Charisma R. v. Kristina S., 175 Cal. App. 4th 361 (2009), [enhanced version available to lexis.com subscribersunenhanced version available from lexisONE Free Case Law], overruled on other grounds in Reid v. Google, 50 Cal. 4th 512 (2010), [enhanced version available to lexis.com subscribersunenhanced version available from lexisONE Free Case Law], It is a piece of the history of the California courts' effort to provide equal legal rights to both mothers and fathers and to ensure that the law is flexible enough to recognize and protect family relationships in the many ways that they are formed,” write the authors. “See, e.g., Elisa B. v. Superior Court, 37 Cal. 4th 108 (2005), [enhanced version available to lexis.com subscribersunenhanced version available from lexisONE Free Case Law].  At the end of the day, therefore, the story of Charisma R. is about much more than the rights of same-sex parents and their children: It is about the right of all people to have a family and to be treated equally under the law. It is a story about the evolution of the modern family.”

“Family law has traditionally been regulated and controlled by state law. In Charisma R. v. Kristina S., the U.S. Supreme Court denied the biological mother's petition for writ of certiorari. This refusal to review California's determination that Charisma was a legal parent under California state law is in line with the historical state control over questions of parentage,” explain Rose and Sakimura. “Because state law governs parentage determinations, the laws affecting same-sex parents vary widely from state-to-state. Some states, like California, recognize that a person who has functioned as a parent to a child can be a legal parent even if he or she is not a biological or adoptive parent. Some other state laws, however, do not allow non-biological and non-adoptive parents to seek custody or visitation or have other parental rights.”

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Amy Rose is a Senior Associate at the firm of Squire, Sanders & Dempsey, LLP in San Francisco, California. Ms. Rose focuses her practice on federal and state court litigation including contract and business tort cases, insurance coverage disputes, unfair competition claims and appellate matters. She advises international clients in a range of industries and practice areas including real estate, telecommunications and media, insurance, banking and transportation. A member of the firm's Appellate & Supreme Court Practice Group, her experience includes petitions for writ of certiorari to the US Supreme Court, appeals in both the Sixth and Ninth Circuits, and a number of appeals and writs before the California Court of Appeal. Ms. Rose also volunteers her time for pro bono appellate matters in the Sixth and Ninth Circuits including habeas corpus petitions, Section 1983 claims, employment matters and asylum appeals. In 2009, Ms. Rose was named a Rising Star in the Northern California Super Lawyer's magazine, a distinction that recognizes outstanding attorneys who are 40 years old or younger or who have been practicing for 10 years or less.

Cathy Sakimura is a staff attorney and coordinator of the National Center for Lesbian Rights' Family Protection Project in San Francisco, California. Ms. Sakimura works to improve access to family law services for low-income LGBT parents and their children, with a focus on increasing services to families of color. This project provides free legal information to low-income LGBT parents and their children; trains and supports attorneys providing free and low-cost services to these families; and works in coalition with organizations serving communities of color to provide culturally competent services to families of color. She also works on NCLR's litigation docket, particularly on family-related cases. Ms. Sakimura is currently a member of the Board of Directors of COLAGE, a national movement of children, youth, and adults with one or more lesbian, gay, bisexual, transgender, and/or *** parents.

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