May 19, 2014 by Robert Franklin, Esq.
Jason Patric has won the right to be a father to his child, Gus. For almost five years now, the actor has been fighting a lonely fight against his ex, Danielle Schrieber, California courts and California law to be allowed to do that humblest and most important of things — give his own son a father. He lost at the trial court level, but that decision has been reversed by a court of appeals.
As if we needed it, the case demonstrates once again fathers’ second-class status in the family courts of this country. Who but a father would have to fight so long and hard just to provide a parent’s love, care and guidance to a child. Not mothers, certainly. Legislatures and courts do their utmost to keep fathers out of children’s lives, but sometimes, even those efforts can be overcome.
Patric’s is one of those times. He and Schreiber lived together for a number of years and tried to conceive a child, but without success. The tried assisted insemination and in vitro fertilization. Nothing worked. Schreiber purchased semen from an anonymous donor at a sperm bank, but never used it. Finally, Patric had minor surgery to increase his sperm count and, with the assistance of a physician to whom the specimen was given for IVF, Schreiber conceived and, in December, 2009, Gus was born.
Prior to the fertility clinic’s assisting them, the pair had to fill out forms designating who was to be the child’s parent. Schreiber filled in Patric’s name as “Intended Parent.”
At trial, Jason presented evidence regarding his relationship with Gus and Danielle over the next two and a half years. For example, he presented evidence that Danielle referred to Jason as “Dada” when speaking to Gus, and Gus called Jason “Dada.” When Jason was working in New York for six months, Danielle and Gus flew there several times and stayed with Jason at his apartment. When Danielle and Gus were not in New York with Jason, Jason communicated with Gus over the Internet by Skype. Jason continued to maintain contact with Gus until the middle of 2012, when Danielle terminated her relationship with Jason.
Now, California has a statute that’s intended to do two things — allow a woman to conceive a child without any participation from the man except his donation of semen and allow a man to donate semen without the obligation of paying child support. In other words, the statute seeks to allow both parties to walk away from each other following sperm donation — she with a child and he without obligations.
It was that statute that Schreiber relied on to attempt to keep Patric out of their son’s life. According to her and her lawyers, her situation with Patric was no different from that of a woman and an anonymous sperm donor. The law that was supposed to protect the man from paying to support a child he didn’t want was used by her to claim that a man who did want his child shouldn’t be allowed to have him, nor the child his father.
The trial court agreed. It read the statute literally — that a biological father who delivered semen to a fertility clinic for the purpose of conceiving a child he and his partner were unable to conceive on their own is, as a matter of law, a stranger to the child forever.
The Court of Appeals read the statute within the context of the legislature’s purpose in passing it and public policy on fathers.
[W]e hold that section 7613(b) should be interpreted only to preclude a sperm donor from establishing paternity based upon his biological connection to the child, and does not preclude him from establishing that he is a presumed parent under section 7611(d) based upon post-birth conduct.
Patric’s “post-birth conduct” of course was to play the part of father to Gus. He treated the boy like his son, which he clearly was, and Gus treated Patric as his “Dada.” Had Patric walked away from the assisted fertilization and had nothing to do with his son for some significant period of time and later decided he wanted to be the boy’s dad, he likely would have been disappointed. But that’s not what happened. He did everything that fathers do for Gus and should never have been shoved out of the child’s life just because he and Schreiber had to make use of a fertility clinic.
As various California courts have remarked,
The paternity presumptions are driven by state interest in preserving the integrity of the family and legitimate concern for the welfare of the child. The state has an “‘interest in preserving and protecting the developed parent-child . . .relationships which give young children social and emotional strength and stability.’”…
The statutory purpose [of section 7611] is to distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not.’”…
“[T]he premise behind the category of presumed father is that an individual who has demonstrated a commitment to the child and the child’s welfare — regardless of whether he is biologically the father — is entitled to the elevated status of presumed fatherhood.” (In re T.R., supra, 132 Cal.App.4th at pp. 1211-1212.) Thus, a sperm donor who has established a familial relationship with the child, and has demonstrated a commitment to the child and the child’s welfare, can be found to be a presumed parent even though he could not establish paternity based upon his biological connection to the child.
The National Parents Organization is proud to have stood beside Patric and honors his commitment to his son and what’s right for fathers in California.
But it is far past time when archaic laws and concepts regarding fathers must be scrapped. Here’s a novel concept: biological fathers have parental rights to their children. Period. The only way they can be ousted from those rights is their own behavior undertaken with knowledge of their child and the ability to be a parent to him/her. If a father demonstrates unfitness, he, like any mother, can have his parental rights terminated, but only in that event. In no case should a mother be able to control a father’s rights by refusing to tell him about his child, keeping his child from him, placing his child for adoption without his knowledge or consent, etc. Fathers’ rights must be in fathers’ hands and no one else’s.
After all, look at what Schreiber was able to do for years — effectively keep a child from his father and a father from his child. Patric is a highly-paid actor and so could afford the type of legal representation necessary to fight and win a prolonged legal battle. The other 99% of fathers don’t. In the same situation, they’d have to jump through the same hoops Patric did, but would have been unable to for one reason — money.
No child should lose its father just because he can’t afford the legal fight. Legislation needs to get a lot simpler. Every biological father must have parental rights based solely on his biological relationship to his child. That’s exactly the same criterion that applies to mothers’ rights, and therefore is fair to both parents. More importantly, it’s fair to kids. Kids need both parents. It’s time state legislatures did the obvious.
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