Setting up parental rights for mothers is much easier than setting one up for unmarried fathers. Mothers can tell by simply providing evidence that she gave birth to the child. Family Code §7610.
Establishing parental rights, including custody and visitation rights, becomes more problematic for unmarried fathers, as proving that you are the birth father does not automatically make you the birth father of the child. Under the Family Act, there are competing presumptions of paternity that allow the non-biological father to be considered the biological father of the child.
A typical situation is when a boyfriend makes a girlfriend pregnant. For some reason, a friend decides to exclude a friend from the baby’s life so that she breaks up with her boyfriend, does not give the boyfriend any information about her delivery, and does not identify the boyfriend as the father on the birth certificate or decide to give someone else than that name father.
Girlfriend does this because her parents disapprove of the ex-boyfriend.
One way to create a presumption of paternity is to make a voluntary declaration of paternity. A voluntary declaration made before 1997 gives rise to a conclusive presumption of paternity and can only be overcome by blood or genetic tests made at the request of the mother or the presumed father within three years of the date of execution of the voluntary family declaration. § 7576; Kevin Q. v Lauren W. (2009) 175 CA4th 1119, 1133, 95 CR3d 477, 485 If the voluntary declaration of paternity is performed after 1996, it is not considered a conclusive presumption. Instead, it should “establish the paternity of a child and have the same force and effect as a paternity judgment issued by a competent court” and trump the presumptions under Section 7611 discussed below. A voluntary declaration of paternity after 1996 “is recognized as the basis for establishing an order for the custody, visit or maintenance of children.”
Family .Code §§ 7573, 7644; Kevin Q. v. Lauren W., supra, 175 CA4th at 1132, 95 CR3d at 485; In re JL (2008) 159 CA4th 1010, 1019, 72 CR3d 27, 33.
Another way to determine suspected father status is if you fall under one of the categories listed under Family Code §7611 (a) to (f):
(a) He and the child’s birth mother are or were married to each other and the child is born during the marriage or within 300 days of the termination of the marriage by death, annulment, annulment or divorce, or after a separation judgment is issued by a court .
(b) Prior to the birth of the child, he and the birth mother of the child attempted to marry through a marriage which was solemnly concluded in apparent accordance with the law, although the attempted marriage was or could be declared invalid and one of the following statements are true:
(1) If the attempted marriage could only be annulled by a court, the child will be born during the attempted marriage or within 300 days of termination by death, annulment, annulment or divorce.
(2) If the attempted marriage is invalid without a court order, the child will be born within 300 days of the end of the cohabitation.
(c) After the birth of the child, he and the birth mother of the child married or attempted to marry through a marriage which was solemnly concluded in apparent accordance with the law, although the attempted marriage is or could be declared invalid , and one of the following is true:
(1) With his consent, he will be named on the child’s birth certificate as the child’s father.
(2) He is obliged to support the child by means of a written voluntary promise or a court order.
(d) He receives the child in his home and openly keeps the child out as his birth child.
(e) If the child was born and resides in a nation with which the United States is enrolled in a proper departure program or successor program, the child acknowledges in an affidavit pursuant to Section 2015.5 of that he is the child’s father Code of Civil Procedure. This subdivision will only remain in effect until January 1, 1997 and will be ineffective on that day.
(f) The child is in the womb after the death of the deceased and the conditions set out in Section 249.5 of the Probate Act are met.
A presumed biological father who does not fulfill any of the § 7611 conditions for presumed father status has no constitutionally protected “freedom interest” in establishing a parenting relationship with a child, in contrast to the rights of an alleged father with whom the child has an existing parenting relationship . Dawn D. v. Super.Ct. (Jerry K.) (1998) 17 C4th 932, 940-942, 72 CR2d 871, 876-877
The facts get even more complicated when the girlfriend whose boyfriend becomes pregnant is married to another man because the law provides a conclusive presumption of paternity for the girlfriend’s husband. According to Section 7540 of the Family Code, it is assumed that the child of a woman who lives with her husband at the time of conception and is not impotent or sterile is “definitively” a child of marriage. This conclusive guess can be challenged by showing that the husband was sterile. It can also be challenged by filing a request for blood or genetic testing under Family Code §7541. However, this must be done within 2 years of the child’s birth. Additionally, only standing individuals can make this application, which is limited to the husband, child, mother, and alleged father as listed in Family Codes §7611 and 7612.
Even if there is no recognized rebuttal, it is at the discretion of the court not to apply the definitive presumption of paternity under Section 7540 if this is not the policy underlying the law to preserve the integrity and stability of an existing marital family and to protect children from death would promote stigma of “illegitimacy” and promotion of individual and not state responsibility for the maintenance of children … since the alleged alleged father according to § 7540 has never established a parental relationship with the child and the only established parent-child relationship with a third Person exists. Brian C. v. Ginger K. (2000) 77 CA4th 1198, 1200-1201, 92 CR2d 294, 296; In re Kiana A. (2001) 93 CA4th 1109, 1115, 113 CR2d 669, 675.
The ex-boyfriend should procedurally file a parenting application as soon as the child is born. While the case is pending, the ex-boyfriend may request a temporary visiting order, although this may be limited or even monitored. If the parentage is successfully proven, the ex-boyfriend can be granted custody and visiting rights. However, the ex-boyfriend would also be required to pay child support according to California guidelines.
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Please note that this article is not intended to be legal advice and is not intended to be legal advice. The article is intended to contain only general, non-specific legal information. This article is not intended to cover all of the issues related to the topic being discussed. The specific facts that apply to your matter may make the outcome different from what you expected.
This article establishes a relationship between you and the law firms of Kenneth U. Reyes, APLC. This article is not a solicitation.
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Kenneth Ursua Reyes is a lawyer specializing in family law. He was president of the Philippine American Bar Association. He is a member of the Family Law Division and Immigration Law Division of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University’s San Bernardino School of Business Administration. He has extensive CPA experience prior to the legal practice. The law firm of KENNETH REYES, APLC is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. (213) 388-1611 or email [email protected] or visit our website at Kenreyeslaw .com
Atty. Kenneth Reyes
Kenneth Ursua Reyes is a certified specialist in family law. He was president of the Philippine American Bar Association. He is a member of the Family Law Division and Immigration Law Division of the Los Angeles County Bar Association. He has extensive CPA experience prior to the legal practice. KENNETH REYES, PC law firms located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. (213) 388-1611 or email [email protected] or visit our website at Kenreyeslaw .com.
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