Biology Doesn't Always Change Legal Father Status

Mother (known as “JB”) and Michael were married in 2011. They lived together until Michael, a U.S. soldier, was deployed to the Persian Gulf in August of 2013. In April of 2014, Michael returned home only to discover JB was seven months pregnant. Using the court’s terminology, her pregnancy was due to “relations” with another man while Michael was deployed overseas.

JB and Michael stayed together during the rest of her pregnancy. He was present in July of 2014, during baby Emma’s birth and signed her birth certificate as her father. For the next few months, JB, Michael and Emma lived together with Michael financially supporting the new “family.” He also listed Emma as a dependent for his military benefits. (When asked during his subsequent paternity hearing why he had done so, he told the court that he was trying to give JB a second chance to make their marriage work.)

Emma’s safety came to the attention of the San Diego County Health and Human Services Agency (known as “Agency”) at her birth when she tested positive for opiates. Reports in August and October, showed JB to be under the influence of drugs to the point of unconsciousness, prompting the Agency to place Emma in foster care.

In November 2014, based on an Agency questionnaire, Michael stated that he was not Emma’s biological father. He was divorcing JB, and because he was not Emma’s father, he did not want to be involved in her life. Further, the military was transferring him out of state in December 2014 so he wouldn’t be available to be in her life.

During a court detention proceeding, to prove that he was not Emma’s biological father, Michael requested DNA testing. The court ignored his request. He also requested a paternity hearing to determine that he was not Emma’s presumed father and further, that his name be removed from her birth certificate. The trial court denied his requests and determined Michael to be Emma’s presumed father and subject to all rights and responsibilities that go with a father’s status.

Michael Appealed

The Appellate Court upheld the trial court’s ruling. Recognition of father status in the state of California is not automatically based on biology but can be based on the behavior of the man before and after the child’s birth. This type of recognition is known as “presumed father” status. It is based on California Family Code Section 7611 (a) which states, “…a man is presumed the natural father of a child born during marriage, or within 300 days after the termination of his marriage to the child's mother. He also attains the status of presumed father if he receives the child into his home and openly holds out the child as his natural child.”

The Appellate Court held that because Michael and JB were together during and after Emma’s birth and he held himself out to be Emma’s father (going so far as to declaring parentage on her birth certificate and providing her with dependent benefits), he was the presumed father of Emma. A DNA test proving he was not the biological father was irrelevant. He was Emma’s father as a matter of law and responsible for her livelihood.

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