Child Support Obligations for “De Facto Parents” – In re Marriage of Abbate

Child custody and support are often common issues in California divorce proceedings, both for children born during the marriage, as well as those born prior to one or both spouses prior to their marriage.  In In re Marriage of Abbate, the Fourth District Court of Appeals explains the circumstances where a divorcing spouse may be required to pay support even if he or she isn’t the natural parent.

Ms. Camarata had a three-year old son when she married Mr. Abbate in 2005 and the parental rights of the biological father of the boy were terminated one year later. Abbate agreed to assume the role as the boy’s father, and the couple filed a petition for Abbate to become the child’s adoptive father the same year, but they divorced before the petition was approved.

In 2007, Camarata took her son to a hospital for treatment, asserting that that he’d been sexually molested. The boy was sent for therapy, which the court said continued until at least June 2010. Believing it was Abbate who had molested her son, Camarata left the marriage and filed a petition for divorce. She named Abbate as the child’s adoptive parent and asked for child support. A court granted a dissolution of the marriage in 2010, but denied the request for child support.

A jury found in favor of Abbate in Camarata’s separate civil suit against him for sexual battery stemming from the alleged molestation. Although the local sheriff’s office also investigated the matter, the Fourth District said it that no criminal charges were filed. Nevertheless, the trial court in the divorce proceeding granted Camarata a number of temporary restraining orders against Abbate, and as a result he he didn’t see the child after August 2007.

On appeal, the Fourth District said the trial court didn’t abuse its discretion in finding that Abbate wasn’t responsible for child support as a de facto parent or based on a “father by estoppel” theory. In so doing, the appeals court relied on a 2007 decision, In re Marriage of Pedregon, in which it held that a husband who began living with his future wife when her son from another relationship was 18 months old and acted as the boy’s father for roughly nine years wasn’t required to pay child support because he wasn’t the child’s natural father.

In Clevenger v. Clevenger, the First District Court of Appeals in 1961 ruled that a non-natural parent may be considered a de facto parent for child support and other purposes where the evidence shows “that the husband represented to the boy that he was his father, that the husband intended that his representation be accepted and acted upon by the child, that the child relied upon the representation and treated the husband as his father and gave his love and affection to him [and] that the child was ignorant of the true facts.”

The Clevenger court also said the relationship between the de facto parent and child must be of “such long continuance that it frustrates the realistic opportunity of discovering the natural father and truly establishes the paternal relationship.”

Here, the court concluded that Abbate’s relationship with the boy simply wasn’t long enough to establish that he was a de facto father. Although he acted as the boy’s father in all respects, he did so for only about 2.5 years before Camarata filed for divorce and obtained the first restraining order. As a result, the Fourth District affirmed the trial court’s decision.

Child support is just one of many issues that a couple seeking a divorce must resolve (or have a court resolve for them). And most parties can often save time and stress, and create better outcomes, by considering alternatives to traditional litigation, such as mediation and collaborative divorce. With offices throughout the Bay Area, California divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes without the bitterness and acrimony engendered by the adversarial process.

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