Lost Boys: Parental Rights, and California Child Custody Law

Here’s the scenario: Mom and Dad long to have a child. “Traditional methods” don’t work. The unmarried couple decides instead to utilize in vitro fertilization, using a licensed California clinic. The procedure works and mom gives birth to a son. Fast forward three years. Mom and Dad decide to part ways. Dad wants to share custody. Mom wants to give dad no parental rights whatsoever.

Here’s the law: “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, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.” (California Family Code § 7613(b).)

Based on the law cited above, the trial judge agreed with mom.

Parental Rights in Hollywood

In this case, dad was no normal dad. He was Hollywood actor Jason Patric, who most people know for starring in The Lost Boys in 1987. Patric has used his celebrity status to bring attention to a gap in the law that can be used by mothers to shut unmarried fathers out of the lives of children with whom they may have otherwise very close relationships.

No one seems to disagree that, should a parent have a close relationship with his biological child, who he supported and spent considerable time with, that parent should have parental rights(although parties in the Jason Patric case disagree as to his involvement with his son), regardless of how that child was conceived.

Indeed, under California law, a parent who “receives a child into his home and openly holds out the child as his natural child” is presumed to be a natural parent, notwithstanding laws to the contrary, like Family Code section 7613(b). (California Family Code § 7611(d).)

Updating California Law to Reflect Better Parental Rights

In that vein, State Sen. Jerry Hill, D-San Mateo, drafted California Senate Bill SB115, which would allow a man whose sperm was used to conceive a child through artificial insemination to ask a court for parental rights, if he can show a certain level of involvement in the child’s life.

While the law and the policy underpinning it seem reasonable and just, there is cause for concern. The same law Sen. Hill wants to amend prevents “pure” sperm donors – those not romantically involved with the child’s other parent – from later trying to obtain parental rights. If sperm donors had this ability under the law, they could make life very difficult for parents involved in artificial insemination, especially same-sex couples who have depended on the practice for years.

Even if the sperm donor loses the case, the ability to get in the courthouse door means the parent or parents must go through the trouble and anguish of disputing a case the legislature previously made impossible to bring in the first place.

But shutting the courthouse door is exactly what happened to Jason Patric. The judge in his case ruled that he cannot even get to a position where he and the mom can argue over the best interests of the child, the gold standard of child custody disputes in California family law. Instead, he cannot even bring the motion because, as a sperm donor, he has no rights under the law. Case closed.

Jason Patric’s case is currently on appeal, while the Senate Bill is on hold.

With offices in Davis, Pakpour Banks LLP represents family law litigants in Yolo, Solano, Sacramento, and Placer Counties.

We fight on your behalf in divorce, child custody, visitation, child support, spousal support, domestic violence, property division, and other family law issues.

We also fight for our clients in eviction disputes, and probate disputes like guardianships and conservatorships.

1667 Oak Avenue Davis, CA 95616
Phone: (530) 302-5444
Fax: (530) 302-4044

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