The opinion
Filed 9/13/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
BOBBY FEEHAN,
Petitioner,
A170984
v.
THE SUPERIOR COURT OF (Alameda County Super. Ct.
ALAMEDA COUNTY, No. 23-FL-05671)
Respondent;
LAUREN SETO et al.,
Real Parties in Interest.
Bobby Feehan seeks extraordinary writ relief from the trial court’s
order denying them temporary visitation during the pendency of their
petition to establish a parental relationship with minor L.S. under Family
Code 1 section 7611, subdivision (d). 2 We previously issued an order to show
cause and now grant the writ petition.
BACKGROUND
Feehan and real party in interest Lauren Seto entered into a romantic
relationship while Seto was pregnant with L.S. At that time, Seto was in a
relationship and registered domestic partnership with Jude Guide. Guide
1 All further undesignated statutory references are to the Family Code.
2 Petitioner Feehan and real party in interest Jude Guide use
they/them pronouns.
1
adopted L.S. after his birth, and Seto and Guide are L.S.’s legal parents.
Guide and Seto also share parenting of L.S.’s older brother.
Feehan asserts the following. They acted as a parent to L.S. from his
birth. Feehan and Seto spent all their time together by the time L.S. was one
year old. Feehan, Seto, and L.S. lived in a single household from the time
L.S. was two years old until he was over five. During that time, Feehan was
involved in daily childcare, such as bathing, dressing, sleep training, and
potty training, participated in L.S.’s education, traveled with L.S. and Seto as
a family, and attended special events, such as preschool graduation,
birthdays, and holidays. L.S. refers to Feehan as one of his parents when
talking to third parties. When Feehan and Seto ended their relationship in
November 2023, Seto unilaterally cut off almost all contact between Feehan
and L.S.
Feehan filed a petition to determine their parental relationship with
L.S. Feehan also filed a request for a temporary order for visitation with L.S.
pending resolution of the issue of parentage. 3
Guide and Seto both opposed the motion. Guide and Seto explained
they were each awarded 50 percent custody of L.S. as part of their divorce,
and they requested the court maintain that arrangement. They asserted
Feehan was not viewed as a parental figure, but rather as a romantic partner
of Seto who assisted with childcare when L.S. was in Seto’s home.
The court denied Feehan’s request for temporary visitation with L.S.
because, pursuant to Family Code sections 7604 and 6436, it did “not find[ ]
authority, under the circumstances of this case to order pendente lite custody
3 Feehan initially sought temporary visitation on an ex parte basis.
The court denied the ex parte relief and that ruling is not at issue in this
appeal.
2
and visitation . . . .” The court rejected Feehan’s argument that courts have
equitable authority to issue pendente lite visitation when the petitioner
makes a prima facie case for parentage. An order after hearing was entered
on June 14, 2024.
Feehan subsequently filed the pending petition for writ of mandate.
This court issued an order to show cause and requested the parties address
the following questions, in addition to any other issues: (1) “Whether former
Civil Code sections 4600, subdivision (a) and 4601 (now repealed), have
modern equivalents in Family Code sections 3022 and 3100, subdivision (a),
respectively, and, if so, does Gadbois v. Superior Court (1981) 126 Cal.App.3d
653 (Gadbois), which construed the now-repealed Civil Code sections noted
above, thereby establish that the trial court had authority in this case to
enter a pendente lite visitation order pursuant to Family Code sections 3022
and 3100, subdivision (a)[;]” and (2) “Is there any legislative history or other
indicia of legislative intent as to whether the Legislature intended to confine
Family Code section 6346 to Domestic Violence Prevention Act [(§ 6200 et
seq.; DVPA)] cases or, conversely, intended section 6346 to apply more
broadly.”
DISCUSSION
Feehan contends the superior court has broad equitable authority to
grant pendent lite visitation in parentage cases. In response, Seto and Guide
assert the Uniform Parentage Act (§ 7600 et seq.; UPA) has established
specific requirements for authorizing pendente lite visitation—i.e., the
existence of a “parent and child relationship . . . pursuant to Section 7540 or
7541”—which does not apply to Feehan.
3
I. General Authority to Award Visitation Under the Family Code
Freehan relies on sections 3022 and 3100, subdivision (a) and Gadbois,
supra, 126 Cal.App.3d 653 to assert the court has broad equitable discretion
to award pendente lite visitation. Seto and Guide contend subsequent
statutory amendments to the UPA negate Gadbois’s analysis and limit the
court’s discretion to award temporary visitation.
A. Relevant Statutory Provisions
“Division 8, part 2 of the Family Code governs the right to custody of a
minor child. Part 2 applies not only to dissolution, nullity and legal
separation proceedings and actions for exclusive custody, but also to
proceedings to determine custody or visitation.” (W.S. v. S.T. (2018) 20
Cal.App.5th 132, 150.) This part specifically encompasses “proceeding[s] to
determine physical or legal custody or visitation . . . pursuant to the Uniform
Parentage Act.” (§ 3021, subd. (f).)
“Under California’s statutory scheme governing child custody and
visitation determinations, the overarching concern is the best interest of the
child.” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) Section 3020
provides, “The Legislature finds and declares that it is the public policy of
this state to ensure that the health, safety, and welfare of children shall be
the court’s primary concern in determining the best interests of children
when making any orders regarding the physical or legal custody or visitation
of children. . . . [¶] . . . The Legislature finds and declares that it is the public
policy of this state to ensure that children have frequent and continuing
contact with both parents after the parents have . . . ended their relationship,
and to encourage parents to share the rights and responsibilities of child
rearing . . . except when the contact would not be in the best interests of the
child.” (§ 3020, subds. (a), (b).)
4
Section 3022 provides broad authority to the courts to enter any
custody or visitation order necessary to achieve these aims, including during
the pendency of an action: “The court may, during the pendency of a
proceeding or at any time thereafter, make an order for the custody of a child
during minority that seems necessary or proper.” Section 3060 in Chapter 3,
entitled “Temporary Custody Order During Pendency of Proceeding,” likewise
authorizes parties to file “[a] petition for a temporary custody order” either
“with the initial filing of the petition or . . . at any time after the initial
filing.” (§ 3060.)
In assessing such requests, the California Supreme Court has
emphasized that courts have “ ‘the widest discretion to choose a parenting
plan that is in the best interest of the child.’ ” (Montenegro v. Diaz, supra, 26
Cal.4th at p. 255.) Section 3100 provides “the court shall grant reasonable
visitation rights to a parent when it is shown that the visitation would be in
the best interest of the child . . . . In the discretion of the court, reasonable
visitation rights may be granted to any other person having an interest in the
welfare of the child.” (§ 3100, subd. (a).) “Appellate decisions have
repeatedly emphasized that trial courts must bear in mind that ‘preservation
of parental relationships is in the best interest of the child as well as the
parent. [Citations.]’ [Citations.] This is in keeping with the avowed intent of
the Legislature to [e]nsure that minor children have frequent and continuing
contact with both parents after the parents have separated or dissolved their
marriage. [Citation.] Only under extraordinary or exceptional circumstances
should a parent’s right of visitation be denied.” (Camacho v. Camacho (1985)
173 Cal.App.3d 214, 218–219; see Hogoboom & King, Cal. Practice Guide:
Family Law (The Rutter Group 2024) ¶ 5:101 [“Visitation requests are
decided under uniform standards (applicable in any proceeding where child
5
custody/visitation is in issue) based on the child’s best interests ([ ]§ 3100 et
seq.). The court’s primary concern is to ensure the child’s health, safety and
welfare; and so long as consistent with the safety of the child and family, to
ensure the child frequent and continuing contact with both parents”].)
The statutory scheme thus repeatedly and clearly emphasizes the
broad authority of courts to enter custody and visitation orders during the
pendency of a proceeding based on the best interest of the child, with an aim
toward preserving the child-parent relationship.
B. Gadbois v. Superior Court (1981) 126 Cal.App.3d 653
In evaluating the application of these provisions to the current dispute,
we find Gadbois, supra, 126 Cal.App.3d 653 instructive. Gadbois addressed
whether former Civil Code sections 4600 and 4601 authorized temporary
visitation for a petitioner attempting to establish paternity. We note former
Civil Code sections 4600 and 4601 were replaced in relevant part by sections
3020, 3022, and 3100, subdivision (a) and are substantively identical.
(Compare former Civ. Code, § 4600, amended by Stats. 1979, ch. 915, § 3,
with §§ 3020 [Law Revision Commission comment noting “Section 3020
continues the first paragraph of former Civil Code Section 4600(a) without
substantive change”]; 3022 [Law Revision Commission comment noting
“Section 3022 continues without substantive change the first sentence of the
second paragraph of former Civil Code Section 4600(a)”]; compare former Civ.
Code §§ 4601, amended by Stats. 1969, ch. 1608, § 8, with 3100, subd. (a)
[Law Revision Commission comment noting “Subdivision (a) of Section 3100
continues former Civil Code Section 4601 without substantive change”].)
In Gadbois, the plaintiff filed a petition to establish paternity.
(Gadbois, supra, 126 Cal.App.3d at p. 655.) In connection with his petition,
he sought pendente lite visitation rights and offered declarations and a blood
6
test as evidence of paternity. (Ibid.) The trial court denied his request. In
doing so, the court did not evaluate the evidence of paternity or consider
detriment to the child, but “declined to make a preliminary determination of
paternity and opined that no harm, irreparable or otherwise, would be done if
visitation were postponed until parentage was established.” (Ibid.)
The court of appeal disagreed, noting “[a]lthough we can find no
specific authorization for a pendente lite visitation order in the Uniform
Parentage Act . . . , we also find no bar to pendente lite visitation.” (Gadbois,
supra, 126 Cal.App.3d at p. 656.) The court identified two then-existing Civil
Code provisions which granted broad authority to courts to enter orders
impacting custody and visitation. (Id. at pp. 655–656.) Former Civil Code
section 4601 provided, “ ‘Reasonable visitation rights shall be awarded to a
parent unless it is shown that such visitation would be detrimental to the
best interests of the child. In the discretion of the court, reasonable visitation
rights may be granted to any other person having an interest in the welfare
of the child.’ ” (Gadbois, at p. 655.) Similarly, former Civil Code sections
4600, subdivision (a) “authorize[d] the trial court to, ‘during the pendency of
the proceeding or at any time thereafter, make such order for the custody of
the child during minority as may seem necessary or proper.’ In this context,
‘order for the custody of the child’ include[d] order for visitation.” (Gadbois,
at p. 656.) The court explained these two provisions “apply to any proceeding
where there is at issue the custody of a minor child.” (Ibid.)
Having concluded the trial court had authority to award pendente lite
visitation in a Uniform Parentage Act proceeding pursuant to these
provisions, the court then addressed “when to grant pendente lite visitation
rights.” (Gadbois, supra, 126 Cal.App.3d at p. 656.) The court explained trial
courts must make “[a] preliminary determination of paternity,” which
7
“requires a showing by a preponderance of the evidence that the plaintiff is
the child’s father.” (Id. at p. 657.) Such a finding “is not res judicata, and the
evidence need not be so extensive as at the trial of the action.” (Ibid.) The
court thus vacated the trial court’s order denying pendente lite visitation and
ordered the court to reconsider the matter. (Id. at pp. 657–658.)
The reasoning in Gadbois is equally applicable to sections 3020, 3022,
and 3100, subdivision (a). 4 These provisions grant courts broad authority to
enter visitation orders “during the pendency of a proceeding” based on the
child’s best interests. (See §§ 3020, 3022, 3100, subd. (a).) And section 3021,
which was enacted after Gadbois, codifies its premise—i.e., that sections
3022 and 3100, subdivision (a) apply “in any” “proceeding to determine
physical or legal custody or visitation in an action pursuant to the [UPA].”
(See § 3021, subd. (f), italics added; Gadbois, supra, 126 Cal.App.3d at
pp. 655–656 [former Civil Code sections 4600 and 4601 “apply to any
proceeding where there is at issue the custody of a minor child.”].) The Law
Revision Commission comments to section 3021 note that it “expands the
application of this part to proceedings in which custody or visitation is
determined in an action pursuant to the [DVPA] or the [UPA]. Application of
this part to these acts provides a complete set of rules where custody or
4 Seto and Guide initially argued Gadbois was distinguishable because
it involved evidence that the petitioner was the minor’s biological father, thus
falling within section 7604. However, the trial court’s “denial of pendente lite
visitation was not based upon evaluation of the paternity evidence or upon
evidence concerning detriment to the child from visitation,” and it “declined
to make a preliminary determination of paternity.” (Gadbois, supra, 126
Cal.App.3d at p. 655.) Rather, the court evaluated a purely legal issue:
whether the provisions of the Family Law Act and Uniform Parentage Act
authorized the trial court to issue temporary visitation before parentage is
established. We face the same question here.
8
visitation is determined in proceedings pursuant to these acts.” (Italics
added.)
II. Authority to Award Visitation Under Family Code Section 7604
While Division 8, Part 2 of the Family Code provides courts with broad
authority to issue visitation orders, Seto and Guide contend section 7604,
which was enacted after Gadbois, restricts the court’s authority in connection
with UPA proceedings. They argue section 7604 limits a court’s authority to
enter temporary visitation orders by requiring courts to first find that a
“parent and child relationship exists pursuant to Section 7540 or 7541.”
Because Feehan is seeking to establish a parental relationship under section
7611, subdivision (d) rather than sections 7540 or 7541, they assert Feehan is
precluded from seeking pendente lite visitation.
We disagree, and find section 7604 does not preclude courts from
awarding temporary visitation in UPA actions under other circumstances.
“ ‘Our fundamental task in interpreting a statute is to determine the
Legislature’s intent so as to effectuate the law’s purpose.’ [Citation.] ‘We
first examine the statutory language, giving it a plain and commonsense
meaning.’ [Citation.] ‘If the language is clear, courts must generally follow
its plain meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend. If the statutory language
permits more than one reasonable interpretation, courts may consider other
aids, such as the statute’s purpose, legislative history, and public policy.’ ”
(California Advocs. for Nursing Home Reform v. Aragon (2021) 60
Cal.App.5th 500, 507.)
Moreover, “[a]s our Supreme Court has explained, ‘ “every statute
should be construed with reference to the whole system of law of which it is a
part so that all may be harmonized and have effect.” ’ ” (In re Donovan L.
9
(2016) 244 Cal.App.4th 1075, 1091 [harmonizing “interpretation of what
constitutes ‘an appropriate action’ under section 7612, subdivision (c)” with
“the broader statutory framework under the Uniform Parentage Act”].)
A. The Statute Does Not Expressly Preclude Visitation
Section 7604 of the UPA states, “A court may order pendente lite relief
consisting of a custody or visitation order pursuant to Part 2 (commencing
with Section 3020) of Division 8, if the court finds both of the following: [¶]
(a) A parent and child relationship exists pursuant to Section 7540 or 7541.
[¶] (b) The custody or visitation order would be in the best interest of the
child.” 5
Here, section 7604 states a court “may order pendente lite relief” if it
makes certain findings. The statute does not require such relief. Nor does it
prohibit the court from ordering such relief in other situations. Seto and
Guide’s interpretation would require us to add the word “only” between “may”
and “order” but we are “ ‘loathe to construe a statute which has the effect of
“adding” or “subtracting” language.’ ” (General Development Co., L.P. v. City
of Santa Maria (2012) 202 Cal.App.4th 1391, 1395 (General Development).)
Moreover, “ ‘[i]t is a well-settled maxim of statutory construction that
“a statute is to be construed in such a way as to render it ‘reasonable, fair and
harmonious with [its] manifest [legislative] purposes . . . .’ [citations], and the
literal meaning of its words must give way to avoid harsh results and
mischievous or absurd consequences.” ’ ” (General Development, supra, 202
Cal.App.4th at p. 1395.) Former Civil Code section 7004.5—the predecessor
to section 7604—first added the language authorizing pendente relief in
5 Sections 7540 and 7541 address parentage presumptions for
individuals “who cohabited at the time of conception and birth.” (§§ 7540,
subds. (a), (b), 7541, subd. (a).) The parties agree neither section 7540 nor
section 7541 applies to Feehan.
10
1990. (Stats. 1990, ch. 543, § 1.) At that time, only a husband was allowed
to file a motion seeking blood tests to challenge the biological tie between
himself and a child from the marriage. (Legis. Counsel’s Dig., Sen. Bill No.
2015 (1989–1990 Reg. Sess.) amended by Stats. 1990, ch. 543, § 1.) Senate
Bill No. 2015 expanded this provision to allow a presumed father or the child
to also seek blood tests to establish biological paternity and, in connection
with this amendment, clarify that they could also seek pendente lite
visitation. (Legis. Counsel’s Dig., Sen. Bill No. 2015 (1989–1990 Reg. Sess.)
amended by Stats. 1990, ch. 543, § 1.) The Legislative history thus indicates
this provision—which subsequently was rescinded and reenacted as section
7604—was designed to clarify that courts could consider ordering more
expansive pendente lite visitation in such situations. Nothing in the
legislative history suggests the statue was designed to eliminate or otherwise
reduce any other visitation rights.
B. The UPA Framework
The framework of the UPA also does not suggest section 7604 was
intended to be the exclusive authority for allowing courts to issue temporary
visitation orders. “The UPA was passed in 1975 to extend the parent and
child relationship equally to every child and to every parent, regardless of the
marital status of the parents. The UPA defines ‘parent and child
relationship’ as ‘the legal relationship existing between a child and the child’s
natural or adoptive parents incident to which the law confers or imposes
rights, privileges, duties, and obligations.’ . . . Legal parenthood can be
established in a number of different ways. Under the Family Code, a person
is conclusively presumed to be the parent of a child if he or she was married
to and cohabitating with the child’s mother, except as specified. A person
who receives a child into his or her home and holds the child out as his or her
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own is also presumed a parent of the child.” (Sen. Com. on Judiciary,
Analysis of Assem. Bill No. 2684 (2017–2018 Reg. Sess.) as amended April 11,
2018.)
In 2014, the Legislature amended the UPA to expand its recognition of
parents. (See, e.g., Assem. Bill No. 1403 (2013–2014 Reg. Sess.) as amended
by Stats. 2013, ch. 510, § 1.) For example, it amended the definition of
“natural parent” to mean “nonadoptive parent . . . whether biologically
related to the child or not.” (§ 7601, subd. (a).) It also specified that courts
are not precluded from “finding that a child has a parent and child
relationship with more than two parents.” (§ 7601, subd. (c).) The UPA also
“was updated in 2014 to be gender neutral.” (Sen. Com. on Judiciary,
Analysis of Assem. Bill No. 2684 (2017–2018 Reg. Sess.) as amended April 11,
2018.)
Seto’s and Guide’s interpretation of section 7604 runs counter to the
Legislature’s repeated efforts to recognize and expand rights for different
family structures and parent-child relationships. Under their interpretation,
only spouses who cohabited at the time of conception and birth or biologically
related individuals—i.e., those demonstrating a parent-child relationship
under sections 7540 or 7541—would qualify for temporary visitation. But the
UPA “provides that the ‘parent and child relationship may be established . . .
(a) Between a child and the natural parent . . . by proof of having given birth
to the child, or under this part.’ [Citation.] This ‘part’ includes section 7611.”
(W.S. v. S.T., supra, 20 Cal.App.5th 132, 150, quoting § 7610, subd. (a).)
Allowing temporary visitation for only one subset of natural parents creates a
hierarchy in which the relationships between children and certain “natural
parents” are given greater protections—e.g., visitation to support those
12
relationship—than others. We cannot conclude the statutory framework or
Legislative history supports such an interpretation.
Seto and Guide further assert the Legislature was presumably aware of
Gadbois when it enacted section 7604 and declined to provide for broader
pendente lite visitation. We agree it is reasonable to assume the Legislature
was aware of Gadbois, but reach a different conclusion. If the Legislature’s
intent “was truly to abrogate” a court’s equitable authority to issue
temporary visitation, “it is reasonable to assume that it would have done so
explicitly.” (See City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74,
88; see also Estate of Housley (1997) 56 Cal.App.4th 342, 354 [noting “ ‘the
well-settled principle that courts should not presume the Legislature
intended “to overthrow long-established principles of law unless such
intention is made clearly to appear either by express declaration or by
necessary implication.” [Citations.] The Legislature could have easily stated
it intended to abrogate long-established equitable principles. It did not do
so.’ ”].) As explained above, when section 7604 was enacted, the Family Code
contained more limited definitions of parentage, and its purpose was “to
specify that the court may order pendente lite relief” for an expanded group of
individuals who could seek blood tests. (See Legis. Counsel’s Dig., Sen. Bill
No. 2015 (1989–1990 Reg. Sess.) Stats. 1990, ch. 543, § 1.) Specifying the
right to visitation in a specific situation—as the Legislature also did in the
DVPA—does not indicate the Legislature intended to abrogate a court’s
longstanding and broad authority to issue any orders necessary for the best
interest of the child, including visitation. (See also § 3021, subd. (f) [applying
Div. 8, Pt. 2—including §§ 3022 and 3011, subd. (a)—to UPA proceedings].)
In sum, we conclude trial courts have discretion under sections 3022
and 3100, subdivision (a) to enter temporary visitation orders if the
13
requesting party has made a preliminary showing that they are a presumed
parent and the order is found to be in the best interests of the child. 6
Because the trial court concluded it lacked authority to grant Feehan’s
request for pendente lite custody and visitation under the Family Code, we
remand for the trial court to consider those issues in the first instance,
namely, to determine whether Feehan has made a preliminary showing that
they are a presumed parent and, if so, whether visitation is in the best
interests of the child. (See E.C. v. J.V. (2012) 202 Cal.App.4th 1076, 1084
[“ ‘[A] discretionary order that is based on the application of improper criteria
or incorrect legal assumptions is not an exercise of informed discretion, and is
subject to reversal even though there may be substantial evidence to support
that order.’ ”].)
DISPOSITION
Let a peremptory writ of mandate issue commanding respondent court
to vacate its order denying Feehan’s request for pendente lite visitation and
to hold a new hearing to reconsider Feehan’s request for pendente lite
visitation in accordance with this opinion. This opinion shall be final as to
this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Feehan
shall recover costs. (Cal. Rules of Court, rule 8.493(a).)
6 Because we reach this conclusion, we need not address Feehan’s
argument that section 6346 provides alternative authority for temporary
visitation outside of a domestic violence situation. However, we note section
6346 provides another example of the Legislature seeking to clarify the
opportunity for visitation in certain circumstances, e.g., in cases involving
domestic violence and restraining orders, when a “party who has requested
custody or visitation has not established a parent and child relationship
under subparagraph (B) of paragraph (2) of subdivision (a) of Section 6323,
but has taken steps to establish that relationship by filing an action under
the [UPA].”
14
PETROU, J.
WE CONCUR:
TUCHER, P. J.
FUJISAKI, J.
(A170984; Feehan v. Superior Court)
15
Feehan v. Superior Court (A170984)
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Maria Morga
Attorneys:
The Wald Law Group, Deborah Wald; Law Office of Anne Mania
and Anne Mania for Petitioner.
No appearance for Respondent.
Hart Ginney and Robyn S. Ginney for Real Party in Interest
Lauren Seto.
Sound Law Group and Staci Lambright for Real Party in Interest Jude
Guide.
16