Cheyenne
Ms. Smarty Pantsless
- Joined
- Apr 18, 2000
- Posts
- 59,553
I thought a few of you here might be able to relate to this problem. I think the child belongs with his "dad," the only one he has ever known.
Court wrestles with rights of a nonbiological father
Harriet Chiang, Chronicle Legal Affairs Writer
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2002/06/06/MN240230.DTL
In 6-year-old Nicholas' world, he has a father who loves him more than anything. He lives in Southern California with the man he calls his dad -- the one who gets him up in the morning, helps him with his homework and is teaching him to play baseball.
Every other Friday, the blond-haired boy hops on a plane to see his mother in Alameda County, who calls him her special boy.
But beyond his tender perspective, Nicholas is at the heart of a wrenching custody fight between his mother, Kimberly, and Thomas, whom he knows as his father.
Thomas is not Nicholas' biological father, and the California Supreme Court will decide today how much of a dad he can be.
The issue that divides the two is whether a man can be the legal parent of a child he raises as his own even though he's not the biological father. Thomas, who moved in with Kimberly when she was pregnant, was awarded temporary custody of the boy two years ago after the couple split up. Nicholas lives in Lakewood with Thomas and Thomas' mother. (Because the case involves a child, the parties are identified only by their first names.)
The case highlights a problem plaguing relationships that have become more fluid and complex. Many couples no longer feel obligated to walk down the aisle before they have a family -- and same-sex couples don't have that option in the first place. Children of broken homes are being raised by stepparents, partners of parents and grandparents.
'HE HAS A FATHER'
In Nicholas' case, "as far as the child is concerned, he has a father," said Francia Welker of Davis, a family law specialist who has been appointed by the court to represent the boy. She favors a solution that focuses on what would be fair to the boy as opposed to the strict letter of the law.
"Sometimes," she said, "the statutory law doesn't cover the bases."
But Kimberly's lawyer says that the law is clear: "natural father" means "biological father."
"You can't just live with a girlfriend, be nice to the girlfriend's kids and be awarded the girlfriend's kids," said Janet Saalfeld, the Sausalito attorney for the mother. Kimberly says she loves her son "very, very much" and questions whether a man who she says beat her up is a good father.
Thomas' lawyer, Frank Free of Berkeley, says that Thomas is the only father Nicholas has, and likely ever will have, since no biological father has stepped forward.
FOSTER HOME SCENARIO
Even if the court rules that Thomas cannot keep Nicholas, there is no guarantee that the boy will move in with Kimberly, who, Free said, cannot keep a job, is often homeless and has a history of drug problems. The boy could very well end up in a foster home, he said.
For some family law experts, the situation is ironic in a world where a third of all children are born out of wedlock, single mothers are struggling to raise children on their own, and the state is waging an endless battle in going after deadbeat dads.
"It is important to be able to give legal recognition to the men who 'volunteer' to be a child's father," said Joan Hollinger, a professor at UC Berkeley's Boalt Hall School of Law and expert on child welfare and adoption law who filed a brief in support of Thomas.
"What we're really talking about is someone stepping up to the plate and assuming legal responsibility for the kid," said Corte Madera lawyer Janet Sherwood, who filed a brief on behalf of the Northern California Association of Counsel for Children.
"It makes no sense to say, 'Oh, sorry kid, this isn't your dad. You're not going to have a dad anymore,' " she said.
MANY RECENT RULINGS
The issue has been a thorny one for the courts. Six appellate courts have addressed the issue -- including five in the past year. Five have ruled that under some circumstances a man who is not the biological father can be the legal father, entitled to all the rights and responsibilities that come with the role.
The one exception was the decision last July involving Nicholas. A three- judge panel ruled against Thomas because he is not the biological father.
Thomas met Kimberly when she was three months pregnant and the two moved in together shortly before Nicholas was born on Aug. 10, 1995.
Thomas was in the delivery room when Nicholas was born and the first to hold him in his arms. He is listed on the birth certificate as the boy's father.
The boy was a positive light in a relationship marred by turmoil and domestic violence.
Thomas pleaded guilty to a misdemeanor battery charge and was ordered to take anger management classes. Kimberly was thrown in jail after she bit Thomas in front of her son. After the couple broke up, she became pregnant by another man and gave birth to a second son but no longer has custody of him.
Kimberly's lawyer said that while she was in jail in Southern California, Thomas whisked Nicholas off to Alameda County without her permission.
In July 2000, Judge Julia Spain awarded temporary custody to Thomas, only to be reversed by the appellate court.
WHAT'S A 'NATURAL FATHER'?
The case hinges on the interpretation of a law defining a "natural father." Thomas' lawyer says he is the legal father because the law includes a man who "receives the child into his home and openly holds out the child as his natural child."
But the appellate court said while Thomas may be the "presumed parent" because he raised him as his own, that right is trumped by the fact that he is not the biological father.
In an unusual turn of events, two of three judges who ruled against Thomas took a different view of the law in a more recent case. In a February decision,
the justices ruled in favor of a 19-year-old who was told by his girlfriend that he was the father of her son. After helping to raise the boy, he learned that he was not the father.
In that case, the court said the boyfriend should not be denied his rights as a parent solely because he was not the biological father.
Nicholas' attorney Welker said that her young client has a loving relationship with both his mother and Thomas and like any youngster would like to see them get back together.
Court wrestles with rights of a nonbiological father
Harriet Chiang, Chronicle Legal Affairs Writer
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2002/06/06/MN240230.DTL
In 6-year-old Nicholas' world, he has a father who loves him more than anything. He lives in Southern California with the man he calls his dad -- the one who gets him up in the morning, helps him with his homework and is teaching him to play baseball.
Every other Friday, the blond-haired boy hops on a plane to see his mother in Alameda County, who calls him her special boy.
But beyond his tender perspective, Nicholas is at the heart of a wrenching custody fight between his mother, Kimberly, and Thomas, whom he knows as his father.
Thomas is not Nicholas' biological father, and the California Supreme Court will decide today how much of a dad he can be.
The issue that divides the two is whether a man can be the legal parent of a child he raises as his own even though he's not the biological father. Thomas, who moved in with Kimberly when she was pregnant, was awarded temporary custody of the boy two years ago after the couple split up. Nicholas lives in Lakewood with Thomas and Thomas' mother. (Because the case involves a child, the parties are identified only by their first names.)
The case highlights a problem plaguing relationships that have become more fluid and complex. Many couples no longer feel obligated to walk down the aisle before they have a family -- and same-sex couples don't have that option in the first place. Children of broken homes are being raised by stepparents, partners of parents and grandparents.
'HE HAS A FATHER'
In Nicholas' case, "as far as the child is concerned, he has a father," said Francia Welker of Davis, a family law specialist who has been appointed by the court to represent the boy. She favors a solution that focuses on what would be fair to the boy as opposed to the strict letter of the law.
"Sometimes," she said, "the statutory law doesn't cover the bases."
But Kimberly's lawyer says that the law is clear: "natural father" means "biological father."
"You can't just live with a girlfriend, be nice to the girlfriend's kids and be awarded the girlfriend's kids," said Janet Saalfeld, the Sausalito attorney for the mother. Kimberly says she loves her son "very, very much" and questions whether a man who she says beat her up is a good father.
Thomas' lawyer, Frank Free of Berkeley, says that Thomas is the only father Nicholas has, and likely ever will have, since no biological father has stepped forward.
FOSTER HOME SCENARIO
Even if the court rules that Thomas cannot keep Nicholas, there is no guarantee that the boy will move in with Kimberly, who, Free said, cannot keep a job, is often homeless and has a history of drug problems. The boy could very well end up in a foster home, he said.
For some family law experts, the situation is ironic in a world where a third of all children are born out of wedlock, single mothers are struggling to raise children on their own, and the state is waging an endless battle in going after deadbeat dads.
"It is important to be able to give legal recognition to the men who 'volunteer' to be a child's father," said Joan Hollinger, a professor at UC Berkeley's Boalt Hall School of Law and expert on child welfare and adoption law who filed a brief in support of Thomas.
"What we're really talking about is someone stepping up to the plate and assuming legal responsibility for the kid," said Corte Madera lawyer Janet Sherwood, who filed a brief on behalf of the Northern California Association of Counsel for Children.
"It makes no sense to say, 'Oh, sorry kid, this isn't your dad. You're not going to have a dad anymore,' " she said.
MANY RECENT RULINGS
The issue has been a thorny one for the courts. Six appellate courts have addressed the issue -- including five in the past year. Five have ruled that under some circumstances a man who is not the biological father can be the legal father, entitled to all the rights and responsibilities that come with the role.
The one exception was the decision last July involving Nicholas. A three- judge panel ruled against Thomas because he is not the biological father.
Thomas met Kimberly when she was three months pregnant and the two moved in together shortly before Nicholas was born on Aug. 10, 1995.
Thomas was in the delivery room when Nicholas was born and the first to hold him in his arms. He is listed on the birth certificate as the boy's father.
The boy was a positive light in a relationship marred by turmoil and domestic violence.
Thomas pleaded guilty to a misdemeanor battery charge and was ordered to take anger management classes. Kimberly was thrown in jail after she bit Thomas in front of her son. After the couple broke up, she became pregnant by another man and gave birth to a second son but no longer has custody of him.
Kimberly's lawyer said that while she was in jail in Southern California, Thomas whisked Nicholas off to Alameda County without her permission.
In July 2000, Judge Julia Spain awarded temporary custody to Thomas, only to be reversed by the appellate court.
WHAT'S A 'NATURAL FATHER'?
The case hinges on the interpretation of a law defining a "natural father." Thomas' lawyer says he is the legal father because the law includes a man who "receives the child into his home and openly holds out the child as his natural child."
But the appellate court said while Thomas may be the "presumed parent" because he raised him as his own, that right is trumped by the fact that he is not the biological father.
In an unusual turn of events, two of three judges who ruled against Thomas took a different view of the law in a more recent case. In a February decision,
the justices ruled in favor of a 19-year-old who was told by his girlfriend that he was the father of her son. After helping to raise the boy, he learned that he was not the father.
In that case, the court said the boyfriend should not be denied his rights as a parent solely because he was not the biological father.
Nicholas' attorney Welker said that her young client has a loving relationship with both his mother and Thomas and like any youngster would like to see them get back together.
