In California, the Family Court System is designed to encourage parties to settle disputes and reach agreements regarding contested issues. Specifically in Del Mar and throughout San Diego County parties are required to attend a Mandatory Settlement Conference before their case can proceed to trial. However, despite this strong public policy towards settlement, the California Court of Appeal has clearly drawn a line between what parties can and cannot agree to.

In this Court of Appeal case, Mother (Kristine) first filed a petition at the trial court level to establish a parental relationship between her son, Seth, and his biological father. Since the parties were not married at the time of conception or birth, there was no presumption that Father (David) was in fact Seth’s father. Once the court determined, through the use of a paternity test, that David was Seth’s biological father, the parties entered into a stipulation. A stipulation is an agreement that can be filed with the court and creates enforceable orders. Kristine and David stipulated that David consented to terminate all of his parental rights and Kristine agreed to waive any claim for future child support. In short, the parties agreed to terminate David’s parental rights and responsibilities.

Over the objection of Minor’s counsel, the trial court was persuaded by the parties’ argument that they had the right and ability to contract regarding their respective parental rights. David argued that proceedings to terminate parental rights are not necessarily linked to a pending or contemplated adoption therefore he should not be prohibited from terminating his on the basis that Seth would only be left with one parent. The trial court was also persuaded in part by case law in which the court upheld agreements made by parents prior to conception of a child such as in artificial insemination and surrogacy cases.

As we have previously blogged, child custody laws and presumptions have evolved over time in San Diego. Recently, some states, including the Commonwealth of Virginia, are moving toward a new way of thinking when it comes to child custody and visitation. These states intend to eliminate the concept of “custody” all together. Instead of determining custodial rights of parents upon divorce, courts would instead determine “parental responsibilities.” This change would reflect a shift in how children are viewed in society. The idea of “child custody” originated when children were still seen as “possessions” to either be won or lost in a divorce proceeding. Just as the term “wife” has evolved, the concept of children as property has faded from the American conscious. Now, certain states are beginning to change the wording of family law statutes to reflect this modern shift.

By eliminating the word “custody” in favor of phrases such as “parenting time” and “decision making,” litigants can better focus on the specific actions of each parent in order to determine which future course of action is in the best interest of the child. The intent behind the new wording is to create a different mindset for all those involved in the case. The change encourages parents to narrow in on parental duties, instead of viewing children as property. Additionally, family courts will have greater latitude and more options when creating a comprehensive parenting plan. The judge will not be forced to place every case in a predesigned box such as those labeled “joint custody” or “sole custody.”

Under the California Family Code, a judge may award physical or legal custody. Although the word “custody” is used to describe both, the two terms have drastically different consequences. A parent awarded legal custody has the right and responsibility to make decisions regarding the child’s health, safety and wellbeing. A parent awarded physical custody will have the right to spend time with the child. The proposals for change in other states attempt to clearly establish a separation between parenting time and decision-making. The spirit of the existing law will be preserved in this area; however, the new terminology is intended to change how these parental responsibilities are viewed. Proponents argue that the use of the word “custody” to describe both parenting time and decision-making is confusing to the layperson and average litigant. By actually describing “legal custody” as decision-making and “physical custody” as parenting time, the two concepts will be better understood throughout the litigation process. Additionally, the word “visitation” will also be eliminated from family law jargon. If one parent is awarded physical custody of the child, usually the noncustodial parent is awarded visitation rights. This term will be replaced with “parenting time” as well in order to reduce confusion.

National bodybuilding champion, Ronnie Coleman, was sued for child support by the mother of his children, Jo D. Jo D. requested that Coleman pay support in the amount of $4,000 per month for the care of their triplets. This is a typical scenario in San Diego family law cases because parents are often sued for past due child support. However, Coleman had a winning argument against payment because he was merely a sperm donor. A California appellate court determined that a sperm donor does not have to pay child support as long as he is not married to the recipient mother.The relationship between Coleman and Jo D. blurred the lines between natural father and sperm donor. The two had a sexual relationship while they both lived in Texas as neighbors. Later, Jo D. moved to California and Coleman provided his sperm at California Cryobank, Inc. so that she could be artificially inseminated. Shortly after the birth of triplets resulting from the artificial insemination, Coleman married another woman. At birth, Jo D. listed Coleman on the triplets’ birth certificate as their father. One year later, she brought a lawsuit to collect child support against Coleman.

Under the California Family Code section 7613(b), “the donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman, other than the donor’s wife, is treated in law as if he were not the natural father of a child thereby conceived.” This presumption is not absolute and can be overcome in various ways by the father such as: marrying the mother, publically declaring parentage of the child in a manner specified by statute, receiving the child into his home or opening holding the child out to be his natural child.

Here, although Coleman and Jo D. agreed to this sperm donation arrangement, Coleman has since acted inconsistent with any indication that he intended to be a natural father to the children and involved in their lives. Since the birth of the children, Coleman did not marry or attempt to marry Jo D. In fact, he married another woman just months after the birth of the triplets in 2007. Further, Coleman did not open his home to the children nor did he hold them out to be his natural children. Therefore, as the appellate court correctly held, Coleman is not responsible to financially support the children despite his sperm contribution.