Stepmother as "presumed parent" upon death of father?

[DecentDad]

Hi Soc,

I was reading recent caselaw, encountered http://www.courtinfo.ca.gov/opinions/documents/B182101.DOC for Amy G. v. M. W. wherein stepmom raised child with biodad for a couple years and then biomom re-entered the picture to assert custodial rights.  Stepmom sought to be determined the presumed mother.

One of their arguments is in reference to Elisa B. v. Superior Court (2005) for the proposition that section 7611 should apply in maternity cases even where the child's birth mother is present and asserts legal parenthood.  Elisa B. involved lesbians, where the court concluded that a child's two parents can certainly both be mothers.

In the recent case, the stepmom was shot down on all counts for lack of merit, mainly because both positions of biological parents are known and not disputed.

If the measure of a "presumed parent" is A) has acted in such role, and B) only one other person is identified as a parent...

I wonder if it'd be a viable argument if when a biological parent (e.g., me) becomes absent through death-- and my wife has been acting in the role of parent since child was 18 months old -- she could seek custodial rights as a presumed parent, given that only one parent (biomom) would exist and the court is willing to accept two parents - regardless of gender.

Essentially, the argument is that three people were all acting in the role of parent for this child (but only two were recognized), and when one recognized parent dies, the third can seek custodial rights via presumed parent arguments.

I can't imagine I'm the first person to ponder this, but I've never heard of it occurring, and I've never seen caselaw on it.

Why should there be a difference between a parent becoming absent by choice versus absent by death?

Or is it that the court's assignment of a child's two parents is permanent once established?  However, that can't be the case, since if biomom were to die, stepmom could adopt child.

1.  If you buy that this has a shot at least to be heard, would we do anything to prepare for it prior to my death?  Any document preparation to accompany my will?  I know that this may seem like a bit of mental masturbation, but my wife and I feel strongly that it's in my daughter's best interest to keep their bond in the event of my death.

Thanks for your thoughts!

DD

[socrateaser]

>Why should there be a difference between a parent becoming
>absent by choice versus absent by death?

Because a live parent has fundamental constitutional rights to the custody and care of his/her child unless already terminated by the court, whereas a dead parent has no constitutional rights to anything, except the right to pass on his/her estate.

>Or is it that the court's assignment of a child's two parents
>is permanent once established?  However, that can't be the
>case, since if biomom were to die, stepmom could adopt child.

Courts don't assign parents. God does that. Courts enforce or terminate parents' due process rights.

>
>1.  If you buy that this has a shot at least to be heard,
>would we do anything to prepare for it prior to my death?  Any
>document preparation to accompany my will?  I know that this
>may seem like a bit of mental masturbation, but my wife and I
>feel strongly that it's in my daughter's best interest to keep
>their bond in the event of my death.

Under the USSC case of Troxel v. Granville a parent is presumed to act in his/her child(ren)'s best interests. Where only one legal parent remains alive, the other parent's fundamental rights prevail over all third parties, absent prove by a third party that termination of the relationship between that person and the child would affirmatively operate against the child's best interests.

If you die, then your child's mother would have the presumptive right to cut off your new spouse's contact with your daughter, unless your new spouse can prove in court that the action would harm the child's best interests.

So, the only way to prevent this from occuring is to have proof of a strong parent-child relationship between stepparent and child. Get lots of photos and videos and audios and keep them current. That is your only protection, because the entire burden of petitioning the probate court and demonstrating the existence of a strong bond will be on your spouse at the preliminary hearing. Fail in that hearing, and she will be left at the whim of your ex.