LAW 612 | Spring 2026

Professor Tammi Walker, JD, PhD

2026, Apr 16

Tuesdays & Thursdays | 1:30–2:45 PM | Room 160

Where We Left Off

Class 24 — Two bases for parentage:

  • Marriage — the marital presumption, modernized through C.C. v. A.B. and made symmetric by Pavan
  • Biology — protected only when accompanied by relationship (Stanley → Lehr)

And the two unresolved collisions:

  • Biology-plus father vs. an intact marital family (today's Michael H.)
  • Parents with neither biology nor marriage — but who functioned as parents

Two Questions From Tuesday

Birth certificates · Two-father families

Q1 — What does a birth certificate actually do?

Tuesday's C.C. v. A.B.: the putative father was on the birth certificate. Several of you asked what that actually establishes.

Three candidate answers:

  1. Evidence of parentage
  2. Legal status as a parent
  3. Constitutional protection of the parent-child relationship

Only one is correct.

Q1 — Answer: Evidence Only

  • Prima facie evidence — not dispositive of status or constitutional protection
  • Michael H. (1989): protection rooted in the unitary family tradition, not documentation
  • D.G. v. K.S. (N.J. 2015): a birth certificate "neither constitutes a legal finding of parentage nor independently creates or terminates parental rights"

Arizona — A.R.S. § 12-2264:

Prima facie evidence — but not of paternity when a non-husband contests.

Three layers: documentation → rebuttable presumption → constitutional protection. The certificate is layer one.

Q2 — If the presumption is about knowing the mother...

The classical rule: mater semper certa est — "the mother is always certain." The marital presumption was built around gestation.

Gestational spouse? Presumption attaches?
Opposite-sex marriage Yes — wife Yes — traditional rule
Same-sex female marriage Yes — one wife Yes — Pavan, McLaughlin
Same-sex male marriage No one ?

Can the presumption attach when neither spouse gestates?

Q2 — Answer: Marriage Triggers the Presumption, Not Biology

  • McLaughlin v. Jones (2017) (Ariz.): § 25-814(A)(1) must apply to same-sex spouses under equal protection.
  • Marriage triggers the presumption — not biology.
  • But: McLaughlin involved a female same-sex couple. One spouse gestated. For two-male couples, no spouse gestates — the child is carried by a surrogate.
  • The presumption attaches spouse-to-spouse. Connecting it to the child still requires a gestational or surrogacy mechanism.

Q2 — Two Pathways + Arizona Gap

Practice solutions:

  1. Marital presumption + pre-birth parentage order under a surrogacy statute (IL, NY, MA; Arizona has none)
  2. Second-parent adoption — portability across state lines ([[V.L. v. E.L. (2016)]])

Counter-example: Foret v. Serrano (La. 2024) — presumption categorically excluded for gestational-carrier births, regardless of orientation.

Marriage — not biology — triggers the presumption. But gestation still matters at the connection point, and Arizona has no surrogacy statute to bridge the gap.

The pivot:

Tuesday's pathways assumed at least biology or marriage as a starting point.

Today: what about a parent who has neither — but has functioned as a parent for years?

Learning Objectives

By the end of this class, you should be able to:

  1. Explain why Michael H. marks the outer boundary of the unwed father's rights — and why Scalia's level-of-generality move matters beyond family law
  2. Distinguish intent-based parentage (Brooke S.B.) from functional parentage (Combs) by timing and evidence

Learning Objectives (cont.)

  1. Apply Troxel's fit-parent presumption to evaluate when functional parentage doctrines survive constitutional challenge
  2. Identify when a court may recognize more than two legal parents — and what "detriment" requires

Roadmap

Master Questions: Who gets to be a family? How does law regulate families that already exist?

  1. The collision — Michael H. v. Gerald D. — biology-plus loses to the marital family
  2. Intent — Brooke S.B. v. Elizabeth A.C.C. — the pre-conception agreement
  3. Conduct — Combs v. O'Neal — functioning as a parent (with a Troxel refresher)
  4. More than two — C.A. v. C.P. — when the two-parent norm gives way
  5. Synthesis — four pathways, one child

Michael H. v. Gerald D.

491 U.S. 110 (1989) — the outer boundary

The Timeline

Year Event
1976 Carole marries Gerald
1978 Carole's affair with Michael begins
1981 Victoria is born; Gerald moves out
1982 Carole/Victoria → Michael → leave → Gerald → leave
1983 Carole/Victoria → Gerald → Michael
1984 Carole/Victoria leave Michael → return to Gerald

Michael files for paternity and visitation. Victoria's GAL argues both Michael and Gerald should be recognized as her fathers.

What Michael Had

  • Biology — confirmed by blood test, 98.07% probability of paternity
  • Relationship — Carole and Victoria lived with him during multiple periods; he held Victoria out as his daughter
  • Under Lehr: he satisfied "biology-plus"

By every measure Tuesday's framework cared about, Michael was a parent. So why does he lose?

California's Conclusive Presumption

Cal. Evid. Code § 621 (then in force):

"The issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage."

  • Conclusive — not rebuttable, even with DNA
  • Standing to challenge limited to the husband or wife — within two years of birth
  • Michael had no statutory pathway to assert paternity

Scalia's Plurality — The Unitary Family

  • The Due Process Clause protects rights "deeply rooted" in tradition
  • American tradition has protected the marital family — not the relationship of the adulterous biological father
"California law, like nature itself, makes no provision for dual fatherhood."

Footnote 6 — The Level of Generality

Scalia's methodological move:

Courts must define the asserted right at "the most specific level" at which a relevant tradition can be identified.

Frame the question as... Result
"The right to parenthood" (Brennan) Long tradition → protected
"The right of the adulterous natural father vis-à-vis a child whose mother is married to another man" (Scalia) No tradition → not protected

Defining the right narrowly is the doctrinal mechanism for excluding groups outside historical protection.

Brennan's Dissent

  • Tradition is not the measure of liberty — Stanley, Griswold, Eisenstadt would all fail Scalia's test
  • The unwed-fathers cases were never only about preserving the marital family — they were about pluralism in family form
  • Scalia's methodology serves the result; the result does not follow from the methodology

Same case. Same facts. Two methodological frames produce opposite answers about whether Michael is a parent.

Victoria's Voice

Victoria's GAL argued the court should recognize both Michael and Gerald as her fathers.

Scalia's response:

"California law, like nature itself, makes no provision for dual fatherhood."

Hold this argument. We will see California enact precisely this provision — and we will end class with a court that recognizes three.

Michael H. Was a Ceiling, Not a Floor

Federal constitutional law closed one door. State law opened five others.

Pathway Anchor Mechanism
Statutory adjudication Tex. Fam. Code § 160.204 Denial + acknowledgment by another
Developed relationship G.F.C. v. S.G. (Fla. 1997) Prove substantial parent-child bond
Thwarted father Kelsey S. (Cal. 1992); J.R. v. D.P. (Cal. 2012) Prompt steps + obstruction by mother
Best-interests override Wyo. Stat. § 14-2-823 Court may preserve legal parentage over DNA
Paternity by estoppel B.C. v. C.P. (Pa. 2024) Defensive — but also bars disruptive third-party claims

Biology is necessary — never sufficient. Responsibility, relationship, or obstruction must fill the gap.

Intent

Brooke S.B. v. Elizabeth A.C.C. — 28 N.Y.3d 1 (2016)

Brooke S.B. — Facts

  • Brooke and Elizabeth — same-sex couple, engaged in 2007
  • Joint decision to have a child; jointly chose the sperm donor; jointly attended medical appointments
  • Elizabeth conceived; both raised the child for two years
  • Relationship ends. Elizabeth invokes the prior rule to deny Brooke any standing

The Old Rule — Alison D. v. Virginia M. (1991)

Categorical: "Parent" means biological or adoptive parent. Period.

  • No standing for nonbiological, nonadoptive partners — even after years of co-parenting
  • Designed for a world of heterosexual reproduction within marriage
  • After Obergefell: same-sex spouses can marry — but the child of an unmarried same-sex couple has only one legal parent

If the law won't recognize Brooke as a parent, what is she to the child she helped plan, conceive, and raise?

Brooke S.B. — The New Rule

The court overrules Alison D. and holds:

Where a petitioner proves by clear and convincing evidence that she and the biological parent agreed to conceive and raise a child together, she has standing to seek custody and visitation as a parent.

  • Pre-conception agreement — the doctrinal hinge
  • Clear and convincing standard — to prevent spurious claims
  • Need not be written, but must be established by evidence

The Limitation — Timing

Pathway Timing
Intent (Brooke S.B.) Pre-conception agreement
Conduct (Combs, next) Post-birth function
  • A person who didn't agree to conceive but later parented in fact → not an intended parent
  • A person who agreed to conceive but never actually parented → not a de facto parent

Two separate doctrines, two separate evidentiary structures. Don't conflate them on the exam.

Conduct

When function — not biology, marriage, or intent — establishes parentage

The Conduct Pathway — Doctrinal Family

Different jurisdictions, overlapping doctrines:

  • De facto parent — UPA (2017) § 609; seven-factor test
  • In loco parentis — assumption of parental duties with the legal parent's encouragement
  • Equitable parent / parent by estoppel — Michigan, Pennsylvania
  • "Holding out" presumption — In re Nicholas H. (Cal. 2002): receiving the child into the home and openly holding the child out as one's own; rebuttal barred when it would harm the child

Common elements: (1) legal parent fostered the relationship; (2) person assumed parental obligations; (3) parent-child bond developed.

Troxel v. Granville (2000) — Refresher

You saw this in Ch. 6. The constitutional backdrop:

  • A fit parent has a fundamental liberty interest in directing the care, custody, and control of the child
  • Third parties seeking visitation must overcome a "special weight" presumption favoring the parent's wishes
  • Washington's third-party visitation statute was too broad — it let any person petition at any time

Question for Combs: if a fit biological parent objects, how can a nonbiological functional parent override that constitutional preference?

Combs v. O'Neal (Neb. 2003) — Facts

  • Brittanae — born to Andrea (mother) and Adrian (biological father, never married)
  • Andrea places Brittanae with Ronetta (her cousin) shortly after birth
  • Ronetta raises Brittanae as her own — primary caretaker for years
  • Adrian pays some support but has minimal involvement
  • Andrea dies. Adrian seeks custody. Ronetta resists.

Combs — The Two Doctrines

The court applies both:

  1. Parental forfeiture — Adrian forfeited his superior parental claim through years of inaction
  2. In loco parentis — Ronetta assumed parental duties with the legal parent's encouragement

Adrian's "biological connection alone, without more," cannot defeat the established psychological parent relationship.

The biological-father preference is not absolute. Conduct can override it.

Combs — The Troxel Tension

How does this survive Troxel?

  • Foster requirement — Andrea (the legal parent) placed Brittanae with Ronetta and encouraged the relationship. Adrian's silence functioned as consent.
  • Forfeiture — Adrian's years of nonparticipation are a waiver of his Troxel-protected preference
  • Heightened standard — clear and convincing evidence required for the functional parent's claim

Functional parentage doctrines are not Troxel-proof. They are Troxel-compatible — but only when carefully designed.

More Than Two

C.A. v. C.P. — 29 Cal. App. 5th 27 (2018)

C.A. v. C.P. — Facts

Three potential parents, one child:

  • C.A. (birth mother)
  • J.A. (C.A.'s husband — marital presumption)
  • C.P. (biological father — held the child out as his own)

Both J.A. and C.P. developed actual parental relationships with the child.

How many parents does this child have?

California Family Code § 7612(c)

A court may find that more than two persons with a claim to parentage are parents if the court finds that recognizing only two parents would be detrimental to the child.

  • Enacted in 2013 — direct response to the post-Michael H. problem
  • "Detriment" is a higher bar than best interests
  • Eight states + D.C. now have similar statutes (UPA (2017) § 613)

C.A. v. C.P. — The Holding

  • The marital presumption is not exclusive — it does not bar recognizing additional parents
  • Both J.A. and C.P. had developed actual parental relationships with the child
  • Severing either relationship would be detrimental

Limiting the child to two parents would require the court to choose between two existing parental relationships — and that choice itself is the harm.

California law now provides what Scalia said nature did not: dual fatherhood.

The Practical Questions

If three people are legal parents:

Question Doctrinal home Status
Custody allocation — how is parenting time divided? Ch. 10 Largely unresolved
Decision-making authority — who consents to medical care, schooling? Ch. 10 Statute-by-statute
Child support — how are obligations calculated among three? Ch. 11 Pro rata, but contested

Multi-parent recognition solves the parentage question. It does not solve the family-law architecture built on a two-parent assumption.

Four Pathways — Synthesis

Pathway Doctrine Anchor case(s)
Marriage Marital presumption C.C. v. A.B., Pavan
Biology Biology-plus Stanley, Lehr, Michael H.
Intent Pre-conception agreement Brooke S.B.
Conduct De facto / in loco parentis / holding out Combs, Nicholas H.
All of the above Multiple parents C.A. v. C.P.

When pathways conflict, courts must choose — or, as in California, recognize them all.

The law treats parenthood as a biological fact.
Then it makes nonbiological spouses parents through marriage.

The law treats marriage as the gateway.
Then it makes unmarried partners parents through intent or conduct.

The law treats two parents as the natural number.
Then it recognizes three.

Every rule about who counts as a parent is also a rule about what kind of family the state will recognize.

Bridge to Chapter 10 — Custody

Chapter 9 answered: Who is the parent?

Chapter 10 asks: Who exercises care?

  • The best interests standard — what it does and doesn't decide
  • Painter v. Bannister — primary caretaker, lifestyle, and judicial discretion
  • Garska v. McCoy — the primary caretaker presumption
  • Palmore v. Sidoti — race and the best-interests inquiry

If C.A. v. C.P. is right that a child can have three legal parents — Chapter 10 is where we find out what that means in practice.

Presenter note: Quick recap. Don't develop. The 2x2 from Tuesday: top-left (Stanley, protected); top-right (Lehr, not protected). Today: collision in the top row (Michael H.) + the entire bottom-left (intent, conduct).

Presenter note: Real student question from Tuesday. Validate that it's a good question — the slides treated the birth certificate as a fact without unpacking what it does. Set up the three candidates; students will intuit that "evidence" is right but the full answer is about the layers.

Presenter note: The key move: the certificate is evidence, not status. Under A.R.S. § 12-2264, it's not even prima facie evidence of paternity where a non-husband contests — Arizona's statute codifies the Michael H. / Lehr intuition that the certificate's evidentiary weight tracks the marital family. The three layers explain why C.C. had to do more than point to his name — he also had to clear the rebuttal and constitutional layers.

Presenter note: Real student question. Let the puzzle land. The traditional rule depended on a gestational spouse because biology was the anchor. Two-male couples necessarily rely on a surrogate — so the presumption's traditional grounding is absent. The question is whether the law extends the presumption by analogy or fails it.

Presenter note: McLaughlin is the headline — marriage triggers, not biology. Be honest about the limit: McLaughlin didn't involve a surrogate. Two-male couples need the surrogacy framework to bridge from spouse-to-spouse attachment to spouse-to-child parentage.

Presenter note: Arizona's lack of a comprehensive surrogacy statute is a practice gap students should know about. Foret v. Serrano is the stark counter-example — Louisiana reads its statute as gestation-required, so two-male couples there cannot use the presumption at all. The Turner v. Korbin biology-focused reading of § 25-814 was not expressly overruled by McLaughlin, so a competing biological claim from a known donor remains a live rebuttal theory under § 25-814(C). If a student asks "what mechanisms exist if no presumption reaches?" — five pathways: (1) Voluntary Acknowledgment of Parentage (VAP) under 750 ILCS 46/301 / A.R.S. § 25-812 — fastest but limited by competing presumptions (ORS § 109.070 bars where another is already presumed); (2) Stepparent / second-parent adoption — most portable, protected by V.L. v. E.L. Full Faith and Credit (Sharon S. v. Superior Court, Cal. 2003; In re Adoption of K.S.P., Ind. Ct. App. 2004); (3) Pre-birth parentage orders (VT 15C V.S.A. § 804; D.C. Code § 16-408 — not available in Arizona); (4) Surrogacy statutes creating parentage by operation of law (CO C.R.S. 19-4.5-109; MI MCLS § 722.1906; IL, NY, MA); (5) Equitable / constitutional interpretation (McLaughlin-style equal-protection extension). Arizona stack in order of reliability: marital presumption + McLaughlin for spouse → VAP under § 25-812 → post-birth order → stepparent adoption under § 8-106 (most portable). A.R.S. § 25-218 explicitly VOIDS surrogate parentage contracts — practitioners pair out-of-state surrogacy with Full Faith and Credit recognition in Arizona.

Presenter note: ~60 sec. The structural move from Tuesday: marriage and biology are the traditional gateways; today's cases ask what happens when those gateways fail (Michael H.) or are absent altogether (Brooke S.B., Combs, C.A. v. C.P.).

Presenter note: Four pathways recap: marriage (Tuesday), biology (Tuesday), intent (today), conduct (today). Multiple parents is the chapter's structural climax — it doesn't displace the four pathways, it allows more than one to win at once.

Presenter note: The chaos is the point. Three men, one child, eight years. Read the timeline aloud — students need to see how unstable Victoria's living situation was. The GAL's dual-fatherhood argument is the seed of C.A. v. C.P. — flag it now; we'll return at the end of class. DIAGRAM PROMPT (paste into Claude/ChatGPT/Adobe): "Generate a horizontal swimlane timeline, 1976–1984, three lanes (Carole+Victoria / Michael / Gerald). Show Carole+Victoria moving between Michael and Gerald with directional arrows for each transition. Color: teal for Gerald, terracotta for Michael, neutral for Carole+Victoria. Export 1280x720 PNG."

Presenter note: This is the cold-frame. Students should feel the friction. The Lehr framework rewards the father who develops a relationship — Michael did exactly that. The answer isn't biology-plus's failure; it's a competing doctrine (the marital presumption) operating at a different level of priority.

Presenter note: California's statute was an outlier in 1989 — most states had moved to rebuttable presumptions. The Court isn't blessing all marital presumptions; it's blessing this specific, restrictive one. After Michael H., California amended § 621 to allow a presumed father to file for blood tests within two years (note 1, p. 726).

Presenter note: The unitary-family framing is the doctrinal heart. The marital family is treated as a single unit deserving protection from external claims — even when those claims come from a biological parent with an actual relationship. The "nature itself" line is rhetorically aggressive and substantively wrong (more than 30 jurisdictions now recognize multi-parent families). It's also the line that C.A. v. C.P. directly overturns.

Presenter note: This is the move that matters beyond Ch. 9. Same methodology decides Casey, Lawrence, Obergefell, Dobbs. Whoever controls the level of generality controls the outcome. O'Connor + Kennedy concur in the result but explicitly reject fn. 6 — preserving the flexibility that later powers Lawrence and Obergefell. The Scalia/Kennedy methodological split tracks the substantive outcomes for 30+ years.

Presenter note: Brennan's critique is procedural and substantive. Procedural: any tradition can be defined narrowly enough to exclude the claimant. Substantive: the unwed fathers' cases protected nontraditional family forms — Scalia's reading guts that. The dissent is essential reading for understanding why family law and substantive due process methodology are inseparable.

Presenter note: Bookmark the argument. Victoria's GAL was 30 years ahead of the doctrine. California Fam. Code § 7612(c) (2013) and the UPA (2017) now permit more than two legal parents. C.A. v. C.P. (2018) is the case that does what Scalia said nature forbids. Forward-link explicitly when you hit C.A. — the callback should land.

Presenter note: Brief (~2 min) — Michael H. foreclosed the federal constitutional claim, but state-law workarounds proliferated. The unifying principle across these pathways: biology alone doesn't do it. The father must show (a) responsibility and developed relationship (Lehr revisited via G.F.C.), (b) that he was thwarted from developing one (Kelsey S. / J.R. v. D.P.), or (c) that preserving an adjudicated relationship serves the child's best interests (Wyoming). Arizona stack: § 25-814(B) requires written consent of the presumed father before another man's acknowledgment takes effect — Arizona's version of Texas § 160.204 but more restrictive. Thwarted-father claims recognized case-by-case in adoption contexts; no codified statutory mechanism. Full analysis in Logseq: [[Lexis Marital Presumption Rebuttal]] § 8 — Post-Michael H. Pathways.

Presenter note: The facts are the legal argument. Brooke did everything a parent does — except give birth or adopt. The question is whether the law's definition of "parent" can survive a world where assisted reproduction routinely produces children whose intended parents have no biological connection.

Presenter note: COLD CALL. Force students to articulate what Alison D. produces in practice. Expected answers: "stranger," "third party," "no rights." Then ask: is that the right answer for a child who has known Brooke as a mother since birth? The categorical rule serves doctrinal clarity at the cost of every child whose family doesn't fit the template.

Presenter note: The C&C standard does the gatekeeping work. The court is clearly worried about opening the door too wide — the standard limits the doctrine to people who genuinely planned the child together. Compare to UPA (2017) § 703, which provides a similar statutory pathway with cleaner evidentiary requirements.

Presenter note: This is the most common student error. Intent and conduct are not interchangeable — they have different prerequisites and different evidence. The exam will test the distinction. Walk through one fact pattern that fails intent (no pre-conception agreement) but succeeds under conduct (years of caregiving), and one that fails conduct (agreement but no actual parenting) but succeeds under intent.

Presenter note: Don't memorize the seven UPA factors — know they exist and the general shape (cohabitation, holding out, bond, foster by legal parent, etc.). Nicholas H. is interesting because Thomas KNEW he was not the biological father — and the court still applied the holding-out presumption. The case shows that conduct-based parentage isn't about genetic mistake; it's about social reality.

Presenter note: Troxel is the constitutional ceiling. Functional parentage doctrines must be designed to survive Troxel — typically by (1) requiring that the legal parent FOSTERED the relationship (waiver/estoppel logic), and (2) recognizing the functional parent as a PARENT (not a third party), so the dispute becomes a custody case between two parents governed by best interests.

Presenter note: Sympathetic facts. Ronetta is the only mother Brittanae has known. Adrian is biological — but absent. The case sets up the cleanest possible test of functional parentage against the biological parent's claim. The dissent (worth flagging) reads exactly the same facts and reaches the opposite conclusion — which tells students that this doctrine is genuinely contested.

Presenter note: Note the structure: the court doesn't displace Adrian's constitutional rights directly. It first finds that he forfeited his preference (through inaction), then recognizes Ronetta as a psychological parent. The two-step move is the Troxel workaround — once Adrian's preference is forfeited, the court can compare the two parental claims on neutral ground.

Presenter note: The doctrinal design matters. A statute that let any caregiver claim parentage would not survive Troxel. The fostering requirement, the forfeiture mechanism, and the heightened evidentiary standard together create a doctrine narrow enough to survive constitutional challenge. Domestic violence concerns are real — see Note (p. 781) — but address through standing limits, not by abandoning the doctrine.

Presenter note: COLD CALL. Push students through the analysis: under the marital presumption, J.A. is the father. Under biology + holding out, C.P. is the father. Under Michael H., the marital presumption wins and C.P. loses. But California changed its law after Michael H. The question now is whether the child can have both.

Presenter note: The detriment standard is doing all the work. It prevents three-parent recognition from becoming the default — it's an exception, not a rule. California courts read detriment narrowly: substantial harm from severing an existing relationship, not just lost benefit.

Presenter note: The callback to Michael H. should land hard. Victoria's GAL argued for this exact result in 1989; Scalia rejected it as contrary to nature. Thirty years later, California's legislature and courts implemented it. The arc of the chapter: from "no provision for dual fatherhood" to a statutory mandate to recognize it when needed.

Presenter note: The downstream complexity is real. UIFSA, custody jurisdiction, school enrollment, medical consent — all assume two parents. The legal infrastructure has not caught up to the doctrine. Empirical data: most multi-parent recognitions involve same-sex couples + known donors, or stepparent + biological parent + nonresident biological parent.

Presenter note: This is the chapter map. Students should be able to take any fact pattern and (1) identify which pathway(s) apply; (2) determine whether they conflict; (3) predict how the jurisdiction resolves the conflict. The capstone exercise (Class 28) starts here: Who is the parent?

Presenter note: Close on the chapter's central tension. The four pathways don't sit neatly alongside each other — they compete, and the competition produces the doctrine. The casebook is honest that no single principle resolves these conflicts. That is the law of parentage.

Presenter note: Clean bridge. Tuesday's class moves from parentage (status) to custody (allocation). The three-step capstone algorithm — Who is the parent? Who exercises care? Who pays? — runs through Chapters 9, 10, and 11. Today closed step 1; Tuesday opens step 2.