Kathleen C. v. Lisa W.

[526]Opinion

HANLON, P. J. In this guardianship proceeding, Kathleen C. (appellant), seeks visitation rights with the children of respondent Lisa W. She contends that she is entitled to visitation rights despite the objections of respondent, the children’s biological mother, because she is the lesbian de facto parent of the children. We conclude that this issue is more appropriately addressed to the Legislature and that appellant is not entitled to any relief here.

Factual Background

In 1984, the parties became involved in a lesbian relationship and began living together in February 1985. Respondent’s daughter, K.G.W., then almost three years old, lived with them. In 1986, the parties decided to have another child, and respondent became pregnant by artificial insemination. Z.C.W. was bom in 1987 and the parties gave the child appellant’s surname as a middle name. Appellant was regularly involved in the parenting and support of both children until the parties separated in 1990.

The parties thereafter agreed to a visitation agreement under which appellant had the children on alternate weekends. Appellant regularly visited with the children until November 1994 when respondent terminated the agreement. Appellant continued to maintain contact with the children through letters and occasionally spoke with K.G.W. on the telephone. In early 1996, appellant visited with the children surreptitiously on several occasions. Respondent learned of these visits and sought a restraining order under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.). In that action, the trial court issued a temporary restraining order on April 25, 1996, against appellant in favor of respondent and her children, preventing appellant from contacting them. Following a hearing, the court granted a restraining order against appellant for a one-year period to July 1, 1997, prohibiting appellant from contacting respondent and her children.

On August 15, 1996, appellant filed a petition for guardianship of the children. She contended that she was the children’s de facto parent and that the children were being harmed because of respondent’s decision to sever their relationship with her. Respondent moved to dismiss the petition, arguing that the restraining order precluded a guardianship and that there were no grounds for guardianship because appellant could not prove that respondent’s párental custody was detrimental to the children. On September 27, 1996, the court deferred mling on the motion, appointed counsel for the children, and set the matter for hearing on October 28, 1996. The trial court ultimately denied the motion on procedural grounds.