Who's Your Daddy?

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.

County appealed.

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 relevant) …
  • 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…”
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