A Case of Two Presumed Fathers of One Child

Wife [W] was married to Husband [H] when she had an affair with her co-worker [F]. The affair resulted in her getting pregnant. Before the affair began, W had told F that she was separated from H, when in fact she remained within her marriage. She also told F that they had to keep their affair a secret from other co-workers and their employer.

W told H that she was pregnant with F’s child, but that she wanted to remain married to H. H also wanted to remain within the marriage. H allowed F to be present for W’s pre-natal medical appointments and was present for Daughter’s [D] birth.

D was born in July of 2012, and all three parties were active in her life. Both W and H encouraged F’s relationship with D. In fact, W told F that D shared his last name, not H’s. From the time D was seven months old, she was spending overnight visitations with F, and by the time she was three, she was spending weekends and a weekday with F and his extended family members. F paid child support to H and W, based on what W said he should pay.

In November of 2015, F discovered that D did not share his last name, but H’s. F, wanting to ensure his parental rights, filed a petition with the family court to be recognized as the third parent. H and W immediately cut off all access to D from F.

The trial court found that F had formed a family bond with D and should be recognized as her third parent with all the rights and responsibilities of any other legal parent. H and W appealed, arguing that H was D’s conclusive father as a matter of law. H and W were married when D was born, and no action was made by F for parental rights until three years later. (Presumed father status must be made within two years of a child’s birth, or the husband will be deemed to be the conclusive father.)

The Appellate Court agreed with the trial court: “In other words, [H and W] interpret the ‘conclusive’ presumption to be an ‘exclusive’ presumption, the application of which precludes the operation of any other presumptions of parenting.”

Under California Family Code Section 7611 (d), F is also a presumed father “… [if he/she] receives the child into his or her home and openly holds out the child as his or her natural child.”

The Appellate Court also cited State Senate Bill No. 274 (2013-2014 Reg. Session for upholding the trial court’s decision:

“(a) Most children have two parents, but in rare cases, children have more than two people who are that child’s parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to children from this harm…

“(c) This bill does not change any of the requirements for establishing a claim to parentage under the Uniform Parentage Act. It only clarifies that where more than two people have claims to parentage, the court may, if it would otherwise be detrimental to the child, recognize that the child has more than two parents…”

In other words, D has three parents (F, H, and W) with all the rights and responsibilities that two parents would have.

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