The County of Riverside California Department of Child Support Services
[County] filed a cause of action against the alleged biological father
[F] of a baby girl [D]. County requested the court to order F to pay child
support for D, because D’s mother [M] was receiving public assistance
(commonly known as welfare). F contended that he was not the father of
D. M was married to Husband [H] at the time of D’s conception and
D’s birth, H was also present at D’s birth and is listed as
the father on D’s birth certificate. As such, by law that made H
the presumed father of D. Therefore, F would not take a paternity test,
nor should he be responsible for D’s welfare.
County argued to the court that only H and M could assert the marital presumption—not
F. County contended genetic testing was mandated by California Family
Code section 7551, and that it would be premature to enter a judgment
of non-paternity prior to receiving the results of the genetic test.
At the hearing, County asserted genetic testing was mandatory upon County’s
request for such tests; there was no evidence supporting F’s assertion
that the marital presumption applied to M and H; that only M and H could
assert the marital presumption; and M’s public assistance application
named F as D’s father.
The family court said, “If the [M] was married to [H] at the time
of the conception of the child, the presumption kicks in automatically.
He doesn’t have to raise it. The child is born during the marriage,
the presumption kicks in automatically. He’s not raising it.”
The court said County failed to provide evidence that F had an affair
with M. But County argued that M named F on her public assistance application,
which caused County to request genetic testing of F. That request triggered
County’s request for genetic testing to be mandatory. The trial
court found for F and not only refused to order genetic testing, but also
declared he was dismissing the case with prejudice (meaning the case was
closed) and granted judgment for non-paternity.
Section 7551 states in part, in a civil action or proceeding in which paternity
is a relevant fact, at the request of a party to the action, or on its
own motion, genetic testing will be ordered. F refused to be tested for
paternity when County first required him to help pay for D’s support.
County sent the request to F as required by County by both Federal law
and California state law.
The Appellate Court held: …”
- There is not substantial evidence that [M] and [H] were married or that
[M] and [H] were cohabitating at the time [D] was conceived. Accordingly,
we conclude substantial evidence does not support the family court’s
application of the marital presumption…
- Since F cannot prove a marriage existed between H and M, the issue concerning
F’s standing to raise the marital presumption is moot (no longer
- In sum, the family court erred by not ordering genetic testing; the family
court’s decision to apply the marital presumption is not supported
by substantial evidence; and the family court’s judgment of non-paternity
is not supported by substantial evidence…”