W.S. v. S.T.

20 Cal.App.5th 132

228 Cal.Rptr.3d 756

W.S., Plaintiff and Appellant,

v.S.T., Defendant and Respondent.

H042611

Court of Appeal, Sixth District, California.

Filed February 1, 2018

Walzer Melcher, Edward M. Lyman, Woodland Hills, for Appellant

Dominion Law Group, Kevin S. Hutchinson, San Jose, for Respondent

Premo, Acting P.J.

In 2014, appellant W.S. filed a petition to establish a parental relationship with his daughter (daughter). W.S. alleged he was daughter's biological father. He claimed he had a relationship with S.T., daughter's mother, while she was married to her husband, Martin T. W.S. requested joint legal and physical custody, equal time visitation, and mediation to work out a parenting plan. He also requested daughter's last name be changed. The trial court denied W.S.'s requests, finding he was not a presumed parent within the meaning of Family Code section 7611, subdivision (d).¹

On appeal, W.S. argues the trial court applied an incorrect legal standard when it found he was not a presumed parent under section 7611, subdivision (d). Furthermore, he claims the court failed to exercise its discretion to order him visitation as an interested party. He also argues California's statutory scheme is unconstitutional, violating the principles of due process and equal protection. Lastly, he claims the trial court's decision on the matter may have been the result of bias. For the reasons set forth below, we affirm.

BACKGROUND

1. Statement of Facts

a. Daughter's Birth

In 2002, S.T. married Martin and had their son Frank. In 2006, S.T. and Martin separated for approximately 18 months. During their separation, they did not live together. S.T. filed for divorce from Martin in 2006. She met W.S. sometime in 2007 or 2008 while working at a car dealership. The two began a relationship. At the time, W.S. believed S.T. was divorced and lived with her mother.

In 2008, S.T. became pregnant with daughter. By that time, S.T. said she had reconciled with Martin and was living with him. She told W.S. he was not daughter's father, and W.S. did not press her for details. During S.T.'s pregnancy, Martin attended prenatal classes with her. He drove her to the hospital when she was in labor and took several weeks off work so he could help afterwards. Martin was in the room during daughter's birth and cut her umbilical cord. His name was put on daughter's birth certificate. According to Martin, S.T. breastfed daughter when she was a baby, and daughter would wake up every two hours. Martin helped S.T. take care of daughter. He changed daughter's diaper, washed her laundry, and rocked her to sleep. When daughter started drinking formula, Martin would prepare bottles for her. Daughter slept with S.T. and Martin in their bed until she was approximately four and a half years old.

Shortly after daughter's birth, S.T. suspected W.S. was daughter's father based on her features. Her suspicions were confirmed by a DNA test.² Martin remained unaware that daughter was not his biological daughter.

S.T. believed W.S. first saw daughter several weeks after she was born. The visit was brief, lasting only several minutes. W.S. lived with his mother at the time, and he did not initially tell his mother that daughter was his daughter.

b. W.S.'s Account of His Relationship with Daughter

W.S., S.T., and Martin provided conflicting accounts of W.S.'s relationship with daughter. Between 2009 and 2010, W.S. said he saw daughter almost every day, and she spent the night at his apartment approximately once or twice a week. Daughter would often stay overnight by herself, because S.T. had to be at home to take care of Frank. W.S. believed S.T. and daughter lived with S.T.'s mother.

Daughter did not have her own room at W.S.'s apartment, which he shared with his mother. W.S. said his apartment was full of daughter's toys and artwork. He had purchased a crib for daughter, but she did not use it. Daughter slept in W.S.'s bed if she spent the night. W.S. made bottles for her if she woke up by putting a scoop of formula in a bottle with warm water. Daughter started eating solid foods between six and nine months. W.S. said S.T. would cut up cooked pieces of vegetables, like broccoli, to feed to daughter.

According to W.S., S.T. began limiting the amount of time daughter spent at his apartment as she got older and began attending daycare.³ W.S. did not participate in activities at daycare, because S.T.'s mother knew people at the school. W.S. did not want to cause embarrassment for S.T., daughter, or Frank if people at the daycare found out that Martin was not daughter's father. Daughter did not spend the night at his apartment as often after she started daycare.

In 2013, daughter began attending preschool. She was enrolled using W.S.'s last name. W.S. paid for daughter's tuition for approximately a year, and he frequently picked her up at the preschool. Daughter's teacher at preschool confirmed that W.S. and S.T. often picked daughter up at school together. Daughter would run to W.S. when he came to get her. W.S. participated in school activities and parent-teacher conferences. The teacher recalled that daughter called W.S. "Pa" or "Daddy." Daughter's teacher believed W.S. and S.T. were a couple in a "[n]ormal relationship." She could not recall seeing Martin at the school.

W.S. held birthday parties for daughter when she turned three, four, and five. W.S. and S.T. took daughter on trips, including a trip to Six Flags for her birthday. Daughter made drawings for W.S., including a drawing with a heart and the word "Pa." W.S. said the photo symbolized "Pa's heart." W.S. posted daughter's artwork around his apartment. He celebrated Valentine's Day, Christmas, Thanksgiving, and Halloween with daughter. W.S. had many nicknames for daughter.

W.S. did not know the name of daughter's dentist or doctor. He had never attended daughter's medical appointments, and daughter was not on his health insurance. However, he did pay for S.T.'s cell phone bill. He also occasionally gave S.T. money.

c. S.T.'s Account of W.S.'s Relationship with Daughter

According to S.T., W.S. exaggerated the closeness of his relationship with daughter. S.T. brought daughter to visit W.S. approximately once or twice a week during her first year.⁴ However, she described daughter's typical visits with W.S. as brief. S.T. allowed daughter to stay overnight at W.S.'s home only once when she was an infant. S.T. found being separated from daughter too painful to allow more overnight visits.

S.T. refuted W.S.'s claims about daughter's feeding. S.T. said daughter was breastfed for the first few months. S.T. insisted she would not have permitted daughter to drink bottles made with warm water that was not boiled first, as described by W.S. She also explained that daughter started eating solid foods between one and two years of age, not between six and nine months. Daughter began eating purees, not diced vegetables.

When daughter started daycare, S.T. would occasionally take her to visit W.S. The visits were short, lasting maybe one or two hours. Daughter spent weekends at home with S.T., Martin, and Frank. When daughter was enrolled at preschool, S.T. allowed W.S. to pay for half of daughter's tuition. S.T. deposited money into W.S.'s bank account to pay for the other half of the tuition. She acknowledged that W.S. frequently went with her to pick up and drop off daughter at the school. Occasionally, daughter went to W.S.'s apartment to play after preschool ended.

S.T. could only remember daughter staying overnight at W.S.'s apartment a total of three or four times. W.S., however, had text messages that seemed to indicate daughter stayed overnight with him at least 10 or more times. When questioned about the messages, S.T. said she could not recall sending the messages and could not remember daughter spending the night so frequently. S.T. described her relationship with W.S. as "verbally abusive." She also claimed she was often present when daughter visited W.S. W.S. would hide daughter's toys when she was not there, because not all of his relatives knew daughter was his daughter.

On daughter's birthdays, S.T. would take daughter to W.S.'s house in the morning. She also brought daughter to W.S.'s house if he had presents for her on Christmas. On Halloween, she would bring daughter over for trick or treating. S.T. acknowledged she had gone on trips with daughter, W.S., and W.S.'s mother. They had visited the Jelly Belly factory for daughter's second birthday. S.T., W.S., and daughter had also gone to Six Flags for daughter's fourth birthday.

d. Martin's Relationship with Daughter

Martin could only recall a few occasions where daughter was not home at night. He did not believe daughter could have spent so many nights at W.S.'s apartment, because he would have noticed she was not at home. Martin described that as daughter got older, he continued to be very involved in her life. He cleaned up for her, cooked for her, and used to pick her up at daycare. When it was time for daughter to sleep, Martin would put her to bed by either reading to her or putting on a movie.

Martin could not recall the name of daughter's preschool. He did not pick her up or drop her off at preschool and did not participate in any of the school activities. He believed S.T. was the one paying for the preschool.

Daughter was on Martin's health insurance. Martin scheduled daughter's dentist appointments and knew the name of daughter's doctor. Martin did not attend her appointments.

e. End of W.S. and S.T.'s Relationship

S.T. described her relationship with W.S. as tumultuous. She said they "ended" their relationship numerous times throughout the years. In July 2014, S.T. told Martin about her relationship with W.S. Martin was upset and initiated divorce proceedings. However, by the time W.S. filed his petition to establish a parental relationship, Martin and S.T. were in the process of reconciling. Martin and S.T. said they were working on their marriage and were not...