The rights of sperm donors in child custody cases have prompted many states to create laws that seek to clarify who has the right to raise the child. In 2022, California enacted Family Code §7613 (b)(1) that says, “The donor of semen…is treated in law as if the donor is not the natural parent of a child thereby conceived unless otherwise agreed to in writing.” Code § 7611(d), however, explains that “a person who receives the child into their home and openly holds out the child as their natural child” is a presumed parent. A recent case adds another twist to these conflicting presumptions.

The case is C.A. (the birth mother and defendant) v. R.R. (the friend and plaintiff). R.R. is C.A.’s close friend, but not her same-sex partner. The case was instituted to determine the legal parentage of nine-year-old E.A. (a male child), who was born in March 2014. D.H., another long-time friend of C.A., is the boy’s undisputed sperm donor. While only C.A. was listed on the birth certificate, C.A stated that D.H. had agreed to participate in the boy’s life by being part of his extended family.”

The birth mother and the sperm donor did not use a physician and there was no written contract about parental rights. At the time of conception, D.H. was also married to another woman who knew nothing about his arrangement with C.A. C.A. and R.R. lived together as friends from 2015 to 2021. When the friend tried to assert her claim, C.A. and the sperm donor argued that she lacked standing.

After a five-day trial, Alameda County Superior Court Judge Clifford Blakely found that E.A. had two parents – C.A. and R.R. – and granted them joint legal custody. The finding was based on statements from several family members and teachers who testified about the positive relationship between the child and the two women who shared her home.

Judge Blakely found it could not be “credibly disputed” that R.R. “qualified as a presumed parent pursuant to section 7611, subdivision (d) because she had established by a preponderance of the evidence that she received E.A. into her home and openly held out the child as her own.” Neither the birth mother nor the sperm donor were pleased with the ruling and both appealed.

The sperm donor’s appeal was based on Blakely’s failure to admit evidence of a declaration of parentage (VDOP) that he and the birth mother had executed. He argued this evidence would give him rights under Family Code § 7611(d) and that Blakely’s failure to accept evidence of the VDOP violated his due process rights. He also argued that R.R., the friend, had no standing because she was not in a “sexual relationship with the biological mother.”

In a unanimous 3-0 opinion authored by Solano Court Judge Wendy Getty of Division One of California’s First District Court of Appeal, the judgment in favor of R.R. being a parent was affirmed in an unpublished opinion on December 19. Getty quickly determined that the existence of a sexual relationship between parents is not a custody requirement.

The opinion then cited a list of precedents and legislative enactments that further clarify parental rights. Judge Getty quoted the Uniform Parentage Act that states, “…a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider…the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.”

The judge also referred to the public policy behind the Act, stating “Most children have two parents, but in rare cases, children have more than two people who are that child’s parent in every way.” She concluded, “In sum, we reject the theory posited by C.A. and D.H. that a woman who alleges that she meets the statutory requirements of section 7611, subdivision (d) does not have standing to pursue a parentage determination unless she has been in a sexual relationship with the biological mother.”

Getty next turned to the rights of the sperm donor. She determined that there was ample evidence that C.A. and D.H. had made an oral agreement that D.H. “would not be a parent.” He said he would be a sperm donor and “agreed to help C.A. conceive a child but that was it.” In addition, neither his wife nor his child knew about the arrangement or the existence of E.A., and D.H. was not listed on the birth certificate. Therefore, the opinion says “the trial court correctly determined that the VDOP executed by C.A. and D.H. in this case was void.”

As a result, the opinion concluded that D.H. was not deprived of his due process right to a fair trial. He didn’t even seek custody until halfway through the trial. He also participated in the trial by cross-examining witnesses and stipulating to various exhibits. Judge Getty did not agree that the trial court failed to give D.H. “equal time to present his parentage claim.” Nor was there evidence of bias.

She concludes, “In the end, it is clear that C.A. and D.H. disagree with many of the decisions made by the trial court in this case. That C.A. and D.H. may be unhappy with the trial court’s rulings, however, does not establish bias, as “a trial court’s numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias, especially when they are subject to review. Rather, “only the most ‘extreme facts’ would justify judicial disqualification based on the due process clause…. The allegations made by C.A. and D.H. in this case fall far short of the showing required for their constitutional claim.”

R.R., the friend, is now also E.A.’s presumed mother. She “received the child into her home” and “held the child out to be her natural child.” The California Family Code says that makes her a presumed parent and she will share joint legal and physical custody with C.A., the birth mother.