April 25th, 2013 by Robert Franklin, Esq.
A California appellate court has found a way to avoid giving custody to yet another fit, loving father. Here's an article about the case (Bakersfield Californian, 4/20/13) and here's the court's ruling.
In truth, it's not the court's fault, but the legislature's. The culprit is the one we'd all expect - the legal difference between unmarried mothers and unmarried fathers. California law is deeply suspect of men who aren't married and who father children. Women who aren't married and who bear children confront no such legal impediments; the state legislature thinks single mothers are just fine and dandy. But, as is so often the case, single fathers have to jump through many hoops in order to care for their children. And so, in the case reported on, a little girl must wait yet longer to be with her father for the simple reason that he's a man and therefore suspect in the eyes of the law.
As usual, none of the parties to the case are named. PA (the mother) had two daughters each by a different father. The only child the case deals with is EA whose father is BS.
The mother was utterly incapable of caring for herself, much less her children. She had substance abuse problems, was violent and unemployed. She and her children spent time in homeless shelters, but were thrown out due to PA's abusive behavior. She regularly hit the children and adults. Her other child was fathered by JN, but he lived with another woman. That woman was insane, hearing voices that told her to stab everyone around her. PA was under a court order not have the children near this woman, but she did it anyway, actually living with her and JN.
Given the completely dysfunctional nature of PA, the juvenile court took both children from her and placed them in foster care. She filed petitions to get them back, in the process telling social workers that EA's father, BS, was dead even though she knew full well that he was alive and residing in Texas.
Part of the process of getting her children back in her "care" consisted of PA's availing herself of "reunification services." That is, she was an incompetent mother and, for that matter, an incompetent person, so the State of California wanted her to prove that she could better herself. It offered her training in how to become a competent mother, but PA never managed to benefit from that training. Plus, she was angry at the very idea that someone might question her mothering abilities. During one supervised visit with her children, a social worker providing reunification services observed PA hit one of the children in the mouth. In court, the Department of Human Services asked the obvious question, "If the mother does this when she knows she is being watched, what will she do when she is not being watched?" Time and again social workers recorded that PA made no progress in learning how to be a decent parent.
Eventually, BS got wind of the fact that his daughter had been placed in foster care. BS was married and living in Texas, but immediately began trying to get custody of his daughter. He traveled to California where a court granted him supervised visitation with EA. The visits went extremely well. BS brought the girl, who was then seven, numerous presents to their first meeting, after which he was so overcome with emotion that he wept. Those supervising the visit were impressed both with him and his daughter's response to him. They played games together and the girl appeared happy. She gave her dad a paper chain she'd made. The court said, "EA talked and smiled throughout the whole three-hour visit." She had never met him, but was ready there and then to spend the rest of her childhood in his care. T
he appellate court gives a good example of EA's responses to, on one hand, her mother with whom she'd spent almost all her life and, on the other, her father, whom she'd only met a few times in supervised settings. A social worker observed the exchange between mother and child. The mother said,
"You're going to go live with your father, remember him?" EA became excited and said "Oh yes, my dad." Mother told EA, "When you go and live with your dad, mommy is not going to go and live with you." EA smiled and said "okay."
In short, EA, at seven years old, was ready to be away from her mother and with her dad. The social workers thought that would be a good idea. At California's request, Texas social workers went to BS's home and evaluated it and him favorably. The California Department of Human Services recommended that EA be placed in her father's care. The judge agreed, ruling that giving sole legal and physical to BS was in EA's best interests. PA was allowed only brief and limited visitation with EA.
That all seems to make perfect sense. After all, family law speaks incessantly about the best interests of children, and in this case, it's clear where that lay. EA's mother was incompetent and abusive. She didn't have regular employment, routinely violated court orders and ignored the assistance with parenting the DHS offered her. Her daughter plainly preferred her father to PA and all the mental health professionals agreed BS was her best placement alternative. So it seems like a pretty straightforward case. What's best for the child was to be in her father's care.
Which is where California law steps in to trump the best interests of the child which elsewhere it enshrines as its paramount consideration in cases involving child custody. As the appellate court explained, when it comes to fathers, in California there are four different kinds, (there's only one kind of mother) and BS, as it turned out, is the wrong kind. California recognizes de facto fathers, alleged fathers, biological fathers and presumed fathers. Presumed fathers are the top of the heap with the other three in a tangled mass at the bottom. Presumed fathers are of course those to whom the mother of the child is married at the time the child is born and "a man who has held the child out as his own and received the child into his home." Note the absence of a biological connection.
BS had paid child support to PA all along, so he clearly acknowledged the child as his, but he hadn't received the child into his home. How would he have done that? As we've noted before here, for a single father to achieve the lofty status of "presumed father," he's required to perform feats that are quite plainly impossible if the mother chooses to make them so. And that's just what PA did.
But what's far more important is the blatant sexism of the law. Why are single fathers treated differently than single mothers? Why does PA's biological relationship to EA give her automatic parental rights but BS's avail him nothing? After all, the important thing is the child's welfare which the court and all experts agreed would be enhanced by BS having custody. But like a bad pin-ball game, he fell into the wrong hole and failed to score the requisite points. He lost, but so did his daughter who now gets to spend more time in foster care.
The case is a disgrace, but only because the state legislature is determined on its sexual double standard in parenting.
I'll make it easy on the California Legislature. When it comes to biological parents, mothers and fathers should have equal rights. If your DNA contributes to the conception of a child, that child is yours until the state can demonstrate that you're not a fit parent. If a person takes on the role of parent for whatever reason, but has no biological tie to the child, that person too should be judged the child's parent if sufficient time has passed and a real parent-child relationship established. If the role has been foisted on him via paternity fraud, he gets to choose whether he wants to continue. If he does, he has the same parental rights and duties as every other parent. If he doesn't, he doesn't. If all that means the child ends up with more than two parents, so be it. That's true of millions of kids with step-parents, and it's no big deal.
There, that wasn't so hard, was it? It covers straight parents and homosexual parents, it covers step-parents and those who've come into the role via paternity fraud. It covers sperm donors. It covers married and unmarried parents.
The California system of forcing fathers to jump through hoops often held by mothers is absurd and sexist and should be done away with. More than one child has lost a fit father solely because he didn't find himself in the right category through no fault of his own. If the state is at all serious about the best interests of children, it will repeal those categories and at long last make fathers and mothers equal.
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