Who's Not Your Daddy?

Mother [M] and the biological father [F] had a sexual relationship, but they never married or lived together.  About two months after the relationship ended, M contacted F.  She told him she was pregnant and that F was the baby’s father.  In December of 2013, while pregnant with her son [S], M began a dating relationship with Colin [C].  M lived alone throughout her pregnancy, C lived in a sober living facility (that did not allow visitors) and F had no relationship with M.

In May of 2014, S was born. On the day S was born, F visited him briefly in the hospital.  M asked F to sign the birth certificate, but F refused.  (S’s birth certificate does not list a father’s name.)

C visited M and S in the hospital, and took them home to M’s house after being discharged from the hospital.  For the next two years, C would visit with M and S every week for about 90 minutes, but C never spent the night.  During this time, F saw S two more times; once at a restaurant, and once for about an hour when C and M went to dinner.

In May of 2016, C, M and S moved in together.  S was now two years old, and referred to C as Colin or Daddy.  Although C spent many hours with S, watched him when M was away, and disciplined S as needed, C was never recognized as S’s father.  C had no access to S’s medical or school information.  C did not add S as a dependent on his medical insurance.  C did, however, post numerous pictures of his interactions with S on C’s Facebook account.

In April of 2015, The County of Los Angeles (the County), acting through its Child Support Services Department, commenced an action against F to establish his paternity and his obligation to provide child support for S. F successfully moved to join C as a party in the action and asserted that C, not F, is S’s father according to section 7611, subdivision (d) of California’s  Family Code (regarding presumed father status).  The County, M, and C disagreed.  A genetic test was conducted, and the results confirm that F is, in fact, S’s biological father.

F argued to the court that C held himself out to be S’s father, and took S into his (C’s) home, thus satisfying the requirements for presumed fatherhood under California law.  In November of 2017, the trial court filed its decision that C was S’s father under the presumed fatherhood statutes.  The court determined F was not S’s father, because he had virtually no contact with S while C was in continuous contact with S since his birth.  M appealed, and the Appellate Court reversed the trial court’s decision.

According to California law, every parent has the duty to support his or her child – even the support of that child before its birth.  The issue was which man should be responsible for the support.  The Appellate Court declared F responsible and not C stating:

“Even if we assume that there is sufficient evidence to support the findings that [C] received [S] into his home and held [S] out as his natural child, thereby establishing the prerequisites to the presumption of parentage under section 7611, subdivision (d), that presumption is not conclusive; it may be rebutted in an appropriate action by clear and convincing evidence… A genetic test result establishing another person’s biological paternity constitutes clear and convincing evidence that is sufficient to rebut, but does not necessarily rebut, the section 7611, subdivision (d) presumption…

“…Our Supreme Court has indicated that rebutting a section 7611, subdivision (d) presumption is not appropriate when doing so ‘will render the child fatherless’… or ‘deprive [the child] of the support of their second parent’... Rebuttal is appropriate, however, in situations where ‘the legal rights and obligations of parenthood should devolve upon an unwilling candidate.’

“…Here, [C] did not seek parental status, and rebuttal of the section 7611, subdivision (d) presumption would not render [S] fatherless or deprive him of the support of a second parent; [F] would be his father and obligated to support him.  Moreover, there is no evidence to suggest that rebutting the presumption and declaring [F] to be [S’s] father would adversely affect [C’s] relationship with [S] or be contrary to [S’s] interests.  Indeed, [C] and [M]—the two people who have been the most interested in [S’s] well-being—requested that [C] not be declared [S’s] father…”

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