top of page

Martinez v. Vaziri Summary

Opinion published April 8, 2016


Factual Background

Martinez v. Vaziri involved application of Family Code section 7612, under which a court may find a child has three parents.  In Martinez, Mother had a child with Father, but Father abandoned Mother during the pregnancy and was later incarcerated.  Paternity testing established Father was a biological father.  To date, Father’s time with the child only amounted to several hours.

Mother, however, was also in a relationship with Father’s brother (Uncle), for many years.  Aware he was not the father, Uncle resolved himself to raise Child as his own.  He attended prenatal appointments, birthing classes, was present for Child’s birth, and cut the umbilical cord at birth.  For the next year, he held himself out as Child’s father and took care of her. 

When Child was about one year old, Uncle spanked her and CPS opened an investigation.  CPS removed the child from Mother’s care for a few days.  It then returned Child but prohibited Uncle from contact for six months.  When the six months expired, Mother allowed Uncle visitation.  In Mother’s opinion, Uncle was essentially Child’s father.  Uncle agreed.  If the court did not name him as a third parent the child stood to lose a father figure and inherence rights.      


Trial Court’s Order


The trial court determined Uncle established himself as a presumed parent under Family Code section 7611.  However, it then rebutted that presumption under Family Code section 7612.  The court reasoned there would be no harm from, as stated by the statute, “removing the child from a stable placement,” because that removal had occurred “some time ago” by CPS.  The earlier judgment establishing Father as the natural parent stood.   Uncle appealed.

Decision on Appeal

Uncle argued before the reviewing court that the court’s interpretation of “stable placement” was too narrow.  The court of appeal agreed.   Use of “the phrase ‘harm of removing the child from a stable placement’ is in reference to the relationship ‘with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time.’ ” Stable placement transcended physical placements and related to the child’s care.  The court wrote, “The premise behind the category of presumed parent is that an individual . . . has demonstrated a commitment to the child and the child’s welfare.”  Visitation alone could establish parental bonus.  The court of appeal remanded the case for the trial court to consider detriment in light of the broader view of stable placement.   

Viewing the presentations, articles, other content, or contacting me/you through my web site does not establish an attorney client relationship. I will not file a notice of appeal nor calculate the time in which a notice of appeal must be filed by until I have received a signed retainer agreement.  Warning, the time from which to file a notice of appeal is statutory. The time in which you have to appeal may pass between when you first contact me and when an attorney client relationship is formed upon when I receive a signed retainer agreement .  Until a retainer agreement is signed and received by me, it is YOUR responsibility to insure your appeal is filed within the statutory period.  The articles on this website are not legal advice and should not be used in lieu of an attorney.  The accuracy of articles and information on this site cannot be relied upon.

bottom of page