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Recently, I watched a dynamic video about the power of words. A blind man has a sign stating: “I’m blind. Please Help.” Many people pass by, but few help. Finally, a young woman sees the sign and changes the words to read: “It’s a beautiful day and I can’t see it,” and goes on her way. At which point, the blind man is now overcome with the generosity of those dropping him spare change. 
Mediation is all about the power of words to help. At the table, I am challenged with how to rephrase a couple’s words so that their needs are heard and are not stifled by anger, bitterness, or a stubborn goal. In one situation, I had a couple struggling to create a workable visitation schedule. Mom thought Dad should have less time because Dad did not know how to care for their children. On the other hand, Dad said he wanted more visitation time, but in private stated he was struggling to make the divorce transition with his new job demands. Rather than allow Mom to say why she believed Dad should have less time, which would result in Dad being hurt and defensive and then demand more time he was not ready for, I worked with the couple separately to reach both of their goals and a resolution that was right for their family. We agreed the schedule could then be reviewed in a short amount of time, at which point, both may feel differently and even be better equipped to use their words wisely.
In October 2011, Newsweek broke a story about the underground market to obtain “free sperm,” in the article, “You Got Your Sperm Where?” In the procreation world, free sperm can save families hundreds of thousands of dollars, although the option comes with social, medical and legal challenges. Consider: the transaction can happen anywhere, including your local Starbucks’ restroom, and medical testing is limited to the requirements imposed by the individuals. If the proper legal releases are not signed, which they probably are not, these donors might also be signing up for child support! You can access the article here.
California courts have not addressed free sperm conceptions yet, but this month, another pivotal paternity case, In re D.A., came from the Second District Court of Appeal (which includes Los Angeles County). The case is another in a long line of cases defining parentage, which isn’t easy given our ever-changing conception or family model.
Well, how do you answer, “Who’s your daddy?,” in California? Be warned. It is far more complicated than it seems. For our purposes, here’s a quick and overly simplified framework. First, is the child’s mother married? If yes, the husband is presumed to be the child’s father and gets to go on the birth certificate. Second, is there a man holding himself out to be the father of this child and has brought this child into his home? He might not be biologically related. If so, he too gets father status. If you answered yes to both questions, you obviously have a problem! When that happens, the Court looks to the bond between the child and the competing fathers to ascertain the child’s best interests. Or, as in In re D.A., the Court says you answered the question wrong and decides for itself!
In In re D.A., while the Mother was pregnant, she told the biological father, C.R., that hecould be the father of D.A. By then, she had already moved on to a new relationship and told her current boyfriend, E.A., that he was the father. C.R. attempted to assist Mother during her pregnancy and be involved with the childbirth and baby; however, Mother refused and cut off all means of communication with C.R. When Mother landed in prison for drug use, and the child was about 6 months, the Court had to answer “Who’s D.A.’s daddy?”
The Court found that, although E.A. was fathering D.A., C.R. was the father because he attempted to father D.A. but had been wrongly kept from him (relying on former case, Kelsey S.). The Court ordered that D.A. be placed with Mother and C.R., and that E.A. have some temporary visitation to smooth D.A.’s transition. By this time, D.A. was almost 2 ½ years old, has no relationship with C.R., and E.A. has been raising him. What are your thoughts about the Court’s decision?
The point? The courts are doing their best to keep up with the changes in the family unit, but to me, it’s seems like we are sticking cork into a punctured bucket hoping it doesn’t explode. Taking our law and applying it to these unique family situations is unnerving. I doubt parents to-be are thinking about the impact paternity law has in the context of their sexual relationships. The child is best served if the parties can cooperate with one another to devise a custody and visitation plan for the child. This might mean custody and visitation to both fathers. Unfortunately, in these tricky cases, the emotions are so intense these parents rarely receive the help they need to reach an agreement and leave it to the courts to decide.
