Amy G., v. M. W.,

Filed 8/17/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County,

Mitchell L. Beckloff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

PETITION for Writ of Prohibition. Petition denied.

Goodman & Metz and Diane M. Goodman for Plaintiff and Appellant Amy G.

Leslie Ellen Shear; and Robert J. Friedman for Defendant, Appellant and Petitioner G. G.

No appearance for Respondent Superior Court of Los Angeles County.

Law Office of Levin & Margolin, Lionel P. Levin; Barbakow & Ribet and Claudia Ribet for Defendant, Respondent and Real Party in Interest M. W.

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INTRODUCTION

M. W. (hereafter Kim) and G. G. (father) are the biological parents of three year-old Nathan. Father and his wife, Amy, have raised Nathan in their home since he was one month old.

In an action brought by Kim for custody and visitation rights to her biological child, the trial court denied father's motion to join Amy as a party. Father filed a petition for writ of prohibition to vacate the court's order and to join Amy in the action.

Amy also brought a separate action against Kim and father, to be declared Nathan's presumed mother; the trial court granted Kim's motion to quash and dismissed that action. Amy and father appealed that order.

In this consolidated petition and appeal, father and Amy argue that Amy is Nathan's presumed mother, and therefore the trial court erred in denying Amy joinder or standing. Father and Amy's arguments present the question of whether the statutory presumptions of paternity contained in the Family Code enable the wife of a man who fathered a child in an extramarital relationship to assert status as the child's mother, when the child's biological mother has come forward promptly to assert her maternal rights.

We answer no, and affirm. We uphold the trial court's denial of father's motion to join Amy and its order granting Kim's motion to quash Amy's independent action.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Father is married to Amy. During his marriage to Amy, he had an extramarital relationship with Kim, the real party in interest. That relationship resulted in a child, Nathan.

During her relationship with father, Kim was married to Steven, but they were separated at the time of Nathan's conception and birth.

Nathan is Kim's only child. Father and Amy have two daughters.

The parties disagree as to their intent and as to the circumstances of Nathan's conception and birth. Father asserts Kim offered to bear a child who would be raised as a child of his marriage to Amy. Kim contends her relationship with father was romantic, the pregnancy was unplanned, and that she expected they would raise Nathan jointly.

Kim concealed her pregnancy from business associates, acquaintances, family and friends and left California for Virginia, where she gave birth to Nathan. Kim cared for Nathan during his first month in Virginia.

In June 2003, when Nathan was one-month old, father came to Virginia to take him to California. Father met with Kim in a hotel lobby. He presented Kim with an â€