Only One Father for J

In 2010, Mother (M) was married to Father (F) when she conceived and subsequently gave birth to J. (a son, named after Father). However, during that time, M had an affair with D, and J’s biological father is actually D.

When D saw M with J a year after his birth, D noticed J’s similarities to himself. The DNA of both D and J were tested, and the results proved that D is, in fact, J’s biological father. D petitioned the court to recognize his presumed father status, but later withdrew his request. Because F was married to M at the time of J’s birth, and for the next two years, F held himself out to be J’s father, under Family Code, F is the conclusively considered by law to be J’s presumed father. And, although, D continued to see J on occasions, F and M continued to raise J as their son.

In 2013, the California Legislature enacted Family Code section 7612, to allow courts to recognize that a child has more than two parents in certain limited contexts:

"In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement 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. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage."

Under this new legislation, D went back into court and petitioned the court recognize his parental status of J. The court found that D met the requirements under the new law, and recognized his parental rights to J. M and F appealed.

The Appellate Court overturned the juvenile court stating: “[T]his is not ‘an appropriate action’ to recognize three parents under section 7612. Because the juvenile court determined [J] did not have an existing relationship with [D. and] there is no substantial evidence to support a finding that recognizing only two parents would be detrimental to [J].”

The Appellate Court specifically stated that “[J was] not the poster boy for [this new legislation]. [T]he Legislature intended amendments to section 7612 to be narrow in scope and to apply only in ‘rare cases’ in which a child ‘truly has more than two parents’ who are parents ‘in every way.’… In those rare cases, the Legislature sought to protect the child from the ‘devastating psychological and emotional impact that would result from ‘[s]eparating [the] child from a parent.’”

Clearly, this was not that case. Although, D occasionally interacted with J, D never acted in the role of J’s parent.

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