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Fatherhood Transcends Biology, High Court Says

Law: Man wins custody of a child he never adopted. Ruling does not address gay parents.

June 07, 2002|MAURA DOLAN | TIMES STAFF WRITER

SAN FRANCISCO — A man may win paternity and custody of a child he has cared for even if he is not the biological father and the mother objects, the California Supreme Court ruled unanimously Thursday.

The state high court held that biology does not necessarily determine fatherhood, even if the man never married the biological mother.

The ruling is the first of its kind by a state Supreme Court, legal experts said. It is based on a model law, the Uniform Parentage Act, that is also on the books in about 18 other states and therefore may have considerable influence nationwide, lawyers said.

Thursday's case did not address gay parents or grandparents who rear children, but it underscored the court's willingness to look to the best interests of the child, regardless of biology.

The ruling "clearly establishes that people who know from day one that they aren't biological parents can through their conduct become parents," said Deborah Wald, an attorney for the National Center for Lesbian Rights. "And that is huge."

The ruling came in the case of Nicholas H., now 6, who has lived in Lakewood with Thomas G., 29, a salesman, while the case has been pending before the state high court. A Court of Appeal had held that Thomas had no paternity rights because he acknowledged he was not the boy's biological father.

The state high court, noting that its decision was "of the gravest concern to the six-year-old boy involved in this case," disagreed, saying it was enough that Thomas had taken on the role of father.

The boy's mother, Kimberly H., began dating Thomas when she was three months pregnant. They split up when Nicholas was 4, and Thomas eventually gained custody. He charged that his former girlfriend was using drugs and was homeless at times.

The identity of the biological father has never been legally determined, and no other man has ever come forward to claim paternity.

Sheri M. Cohen, a lawyer for Kimberly, complained that Thursday's decision will encourage "former boyfriends, relatives and even foster parents" to assert parental rights over biological mothers.

Cohen noted that Thomas never attempted to adopt the boy or marry his mother.

"We fear this case is going to open the floodgates of litigation for people who play parental roles to small children," Cohen said.

But Francia M. Welker, a court-appointed attorney for the child, said the decision was "wonderful in terms of providing children with fathers." She said the blond-haired Nicholas is bright and healthy and loves both his parents, but prefers to live with Thomas.

Thomas has taught his son to swim and play baseball and is active in his school, lawyers said.

"He thinks his dad is Tom, and what do you know? He is right. This is the dad he has always known," Welker said.

Thomas decided he wanted to become the boy's father after dating the pregnant Kimberly, Welker said.

"The child was not going to have a father, and Kimberly really is quite a beautiful woman," said Welker. "I guess it just touched Thomas' heart. He was going to do the right thing."

Thomas was present at the boy's birth and his name was listed on the birth certificate.

The couple split up at least once before separating for good, the court said. Thomas gave Kimberly and Nicholas financial support--how much is in debate--when they were not living together.

Kimberly, because of drug abuse and mental instability, was unable to provide a stable home for Nicholas, the court said.

The mother "has been a frail reed for Nicholas to lean upon," Justice Janice Rogers Brown wrote for the court, while "Thomas has been a constant in Nicholas's life."

Thomas was the presumed father under the state's paternity laws because he openly held Nicholas to be his son and cared for and supported him.

"A man does not lose his status as a presumed father by admitting he is not the biological father," Brown wrote.

If the court ruled otherwise, "this child will be rendered fatherless and homeless," Brown said.

Kimberly and Thomas charged each other with domestic abuse. Thomas was once arrested for allegedly battering Kimberly and pleaded guilty to a misdemeanor battery in Los Angeles in 1997, his lawyer said. Kimberly also was arrested for battery for allegedly biting Thomas, the court said.

"Thomas was not a perfect candidate for fatherhood, if any such there be," Brown conceded.

But fatherhood, she continued, "does not depend on the presumed father's being a paragon. What is dispositive is the presumed father's relationship with and responsibility for the child."

Kimberly's lawyer said the court's description of Kimberly was based on old allegations and described Kimberly, who lives in the San Francisco Bay Area, as hurt and disappointed by the portrayal.

"She had custody for 4 1/2 years," Cohen said, and at the time the court fight began, Nicholas was "considered to be a delightful, healthy child."

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