What – not who – is the daddy?
This is the question on the minds of celebrity gossip hounds this week as the actor Jason Patric returns to court for round two of his custody battle for his four-year-old son Gus. His opponent in a Los Angeles appeals court is girlfriend-turned-friend-turned-sworn-enemy, Danielle Schreiber, a massage therapist and businesswoman – and the mother of Patric's son.
While the tale has all the trappings of a sensational People Magazine story, the case should be of great interest for anyone who seeks to plan a family in a fuzzy legal area outside of a conventional relationship. Patric vs. Schreiber is more than just a postmodern Kramer vs. Kramer, it's also a cautionary tale for lesbian parents, infertile heterosexual couples and single mothers by choice who decide to have a casual, off-the-books "arrangement" with the biological father of their children.
More than anything, however, it's a warning to men: Before you sign your sperm away, understand what you are getting into and, most importantly, realize that once an actual human child is in the picture, your feelings about the "arrangement" might radically change.
The story of Schreiber and Patric is uncommon but hardly bizarre. The couple dated on and off for nearly a decade, tried to get pregnant the natural way and failed. Once they'd broken up, Patric volunteered some of his sperm so Schreiber could attempt to get pregnant through in-vitro fertilization. They were successful and, in 2009, Gus was born. Patric opted not to have his name on the birth certificate but he visited his son regularly. He and Schreiber resumed their romantic relationship for two years, during which Patric maintains he parented Gus like any normal father. When they broke up for good in 2012, Patric petitioned for shared custody of his son. Shortly after, Schreiber abruptly decided to deny Patric access to Gus – something she was entitled to do as the child's only legal parent. She requested a restraining order and got one, which still stands today.
Schrieber's story is that Patric is a non-anonymous sperm donor whom she allowed into her son's life until he became threatening, at which point she invoked her legal rights as a single mother to protect her child.
Patric's story is that he is a father who is being denied access to the son he loves.
So who is right?
The first court sided with Schreiber, but Patric is confident he will win on appeal. He has appeared on Katie Couric and the Today show to tell his story (as did Schreiber) and recently gave an interview with The New York Times. Last fall he launched Stand Up for Gus, a foundation to provide legal assistance for fathers being denied custodial access to their children.
"I want to leave a huge paper trail so Gus knows how hard I fought for him," he has said.
California lawmakers are said to be watching the case closely as it will affect the on-going formation of new legislation intended to clarify the state's currently murky donor laws. Like most of Canada, California has no definitive case law as to the legal rights and obligations of a sperm donor – although British Columbia has amended its legislation to reflect that a sperm donor should not automatically have parental rights.
It's estimated in the U.S. that 30,000 births result from donor sperm each year. In Canada, numbers are harder to come by, mainly because Canadian law prohibits the sale of donor sperm – not that this stops prospective parents from buying and importing it.
The issue of whether sperm donors should have equal parental rights is a thorny one. While some non-anonymous donor dads (like Patric) make a compelling case for why they should have rights, many donors worry that a decision in Patric's favour could render them liable for child support.
Ultimately, the question of what makes an adult a parent to a child is not about biology. It's about whether the relationship with the adult in question should be continued for the child's sake. In Patric's case, the answer is yes. Most children, after all, benefit from the attention of a loving and engaged father. But what about the rights of a single mother by choice (as Schreiber insists she is) to raise her child without outside interference? In this case, I think Patric has established enough of a paternal relationship that the benefits of continuing it outweigh the difficulty it might cause Schreiber. Her case against sharing custody looks suspiciously self-serving. A mother shouldn't be able to cut an established father out of her child's life just because his name isn't on the birth certificate.
In tricky cases like this, says Toronto family lawyer Stephen Grant, "Legislating rights across the board is probably not the right answer. What the court needs to do is to look at the characters of the parties involved and decide what is in the best interests of the child." But as he points out, this potentially opens up the floodgates for all sorts of other non-legal (and non-biological) parent figures making claims on children after relationships fall apart. "What about a step-parent who divorces the biological parent but wants to maintain access to a child – why shouldn't they make a similar claim?"
In the court of natural justice it seems clear Patric deserves to see his son – and more importantly that his son deserves to see him. But the California court will decide, and justice – natural or not – will prevail. In the end, standing up for Gus poses more legal problems than it solves.