In its Big Brother way, California has historically always favored “conclusive presumptions of paternity”, that is, when a mother is married and living with her husband (who is neither impotent or sterile) at time of conception, her husband is conclusively presumed to be the child’s father. EVEN though he may NOT be the child’s biological father. This law is written in Family Code section 7540.
Thus, historically, it would SUCK for an unwed father if the mother was married – he would literally have NO rights to the child.
In our ever-changing world – family law must keep up with the trends. Thus, more and more, the law is leaning in favor of unwed fathers who have established relationships with their children (i.e., “receiving the child into his home and openly holds out the child as his natural child”.
Now, in the age of the “Modern Family” (my favorite show, ever!), I am not seeing more and more paternity cases with complicated fact patterns, such as these.
- My wife nor I ever told the guy he was the father of our little girl. We never pursued child support. I was in the hospital when our little girl was born, I signed the birth certificate, and I raised her. Now, my daughter is 3 years old, and the biological father wants a paternity test. Neither me or my wife wants this done. What are our rights?
- I am the father of the child my girlfriend and I conceived when she was still married to her husband, who was away in the army. Their marriage was a “sham”, only for military benefits. I raised our child. Now, we broke up, and she moved back in with her husband, and denied me visitation. What are my rights?
In the first hypothetical, the bio-dad loses, because the husband will be held as the “presumed” father of the child, even though he is not the child’s biological father. These are the facts of Dawn D. v. Superior Court (1998) 17 Cal. 4th 932. There, the bio-dad Jerry impregnated Dawn while she was separated from Husband Frank. However, before the baby was born, Dawn moved back in with Husband Frank and they raised the child together. Jerry never “openly received the child into his home”, never had a relationship with the child, and thus loses as the bio-dad. As stated by Justice Kennard: “A man who wishes to father a child and ensure his relationship with that child can do so by finding partner, entering in a marriage, and undertaking the responsibilities marriage imposes. One who instead fathers a child with a woman married to another man takes the risk that the child will be raised within that marriage and that he will be excluded from participation in the child’s life.”
In the second, the bio-dad wins, because the Court held that though mom was technically living with the military husband at the time, their marriage was a sham. Further and more importantly, bio-dad had a caring paternal role in the child’s life. These are the facts of In Re Comino v. Kelly (1994) 25 Cal.App. 4th 678. The court held here, bio-dad is a presumed father per California Family Code 7611, and thus wins.
So, from these 2 cases, a “presumed” father always wins, even over a bio-dad who is NOT presumed. Sometimes, there can be more than one “presumed” father.
So what is a presumed father? See Family Code 7611. It also sheds light on the whole Anna Nicole Smith case (where she tried to marry her lawyer to deprive the bio-dad).
A person is presumed to be the natural parent of a child if:
(a) The presumed parent and the child’s natural mother are or have
been married to each other and the child is born during the
marriage, or within 300 days after the marriage is terminated by
death, annulment, declaration of invalidity, or divorce, or after a
judgment of separation is entered by a court.
(b) Before the child’s birth, the presumed parent and the child’s
natural mother have attempted to marry each other by a marriage
solemnized in apparent compliance with law, although the attempted
marriage is or could be declared invalid, and either of the following
(1) If the attempted marriage could be declared invalid only by a
court, the child is born during the attempted marriage, or within 300
days after its termination by death, annulment, declaration of
invalidity, or divorce.
(2) If the attempted marriage is invalid without a court order,
the child is born within 300 days after the termination of
(c) After the child’s birth, the presumed parent and the child’s
natural mother have married, or attempted to marry, each other by a
marriage solemnized in apparent compliance with law, although the
attempted marriage is or could be declared invalid, and either of the
following is true:
(1) With his or her consent, the presumed parent is named as the
child’s parent on the child’s birth certificate.
(2) The presumed parent is obligated to support the child under a
written voluntary promise or by court order.
(d) The presumed parent receives the child into his or her home
and openly holds out the child as his or her natural child.
(e) If the child was born and resides in a nation with which the
United States engages in an Orderly Departure Program or successor
program, he acknowledges that he is the child’s father in a
declaration under penalty of perjury, as specified in Section 2015.5
of the Code of Civil Procedure. This subdivision shall remain in
effect only until January 1, 1997, and on that date shall become
(f) The child is in utero after the death of the decedent and the
conditions set forth in Section 249.5 of the Probate Code are
This area of law is so very complicated, and is always changing. Make sure you consult with an attorney if any of these issues apply to you. Also, please remember that a “presumed father” status MUST be raised in your arguments to successfully challenge a bio-dad’s paternity action. I once represented a bio-dad (who would otherwise have no rights). The other side was married at the time the child was conceived, yet, her attorney never raised the issue. I was able to successfully obtain custody and visitation for my client.