Category Archives: PATERNITY – You ARE the father!

FAMILY CODE 7611- Presumptions regarding Parent-Child Relationship

A person is presumed to be the natural parent of a child if the person meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions:

(a) The presumed parent and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.

(b) Before the child’s birth, the presumed parent and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:

(1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.

(2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.

(c) After the child’s birth, the presumed parent and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:

(1) With his or her consent, the presumed parent is named as the child’s parent on the child’s birth certificate.

(2) The presumed parent is obligated to support the child under a written voluntary promise or by court order.

(d) The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.

(e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child’s father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative.

(f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied.

(Amended by Stats. 2013, Ch. 510, Sec. 3. (AB 1403) Effective January 1, 2014.)

MARRIAGE AND THE PRESUMPTION OF PATERNITY

These two code sections address the presumption of a child born during the marriage. If these code sections don’t make sense to you, consider a situation where unknown to the father, a child is born but it is not his. 5 years after the child is born, Wife files for divorce and discloses that Husband is not the father. Father has raised this child believing it was his and has created a very strong emotional bond with the child. It is not considered to be in the child’s best interest for the father to be forced out of the child’s life in that circumstance. It assumes the best in people and the idea that he will want to continue to be father.

FAMILY CODE 7540

(a) Except as provided in Section 7541, the child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the marriage.

(b) The conclusive marital presumption in subdivision (a) does not apply if the court determines that the husband of the woman who gave birth was impotent or sterile at the time of conception and that the child was not conceived through assisted reproduction.

FAMILY  CODE 7541

(a) If the court finds that the spouse who is a presumed parent under Section 7540 is not a genetic parent of the child pursuant to Chapter 2 (commencing with Section 7550), the question of parentage shall be resolved in accordance with all other applicable provisions of this division, including, but not limited to, Section 7612.

(b) An action to challenge the parentage of the spouse who is a presumed parent under Section 7540 shall be filed not later than two years from the child’s date of birth and may only be filed by any of the following:

(1) By either spouse.

(2) By a person who is a presumed parent under Section 7611 or by the child, through or by the child’s guardian ad litem, to establish the parentage of the person who is a presumed parent under Section 7611.

(c) The petition or motion to challenge a presumption under Section 7540 pursuant to this section shall be supported by a declaration under oath submitted by the moving party stating the factual basis for placing the issue of parentage before the court.

(d) Genetic testing may not be used to challenge parentage, in either of the following cases:

(1) A case that reached final judgment of parentage on or before September 30, 1980.

(2) A case challenging the parentage of a spouse who is a parent pursuant to Section 7962 or subdivision (a) of Section 7613, except to resolve a dispute regarding whether the child was conceived through assisted reproduction.

(Amended by Stats. 2018, Ch. 876, Sec. 6. (AB 2684) Effective January 1, 2019.)

WARNING!! 2 YEAR LIMITATION TO DISPUTE YOU ARE THE FATHER!

The 2 year time limits are contained in Family Code Sections 7612 and 7646

FAMILY CODE 7612

a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2, a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.

(b) If two or more presumptions arise under Section 7611 that conflict with each other, or if one or more presumptions under Section 7611 conflict with a claim by a person identified as a genetic parent pursuant to Section 7555, the presumption that on the facts is founded on the weightier considerations of policy and logic controls. If one of the presumed parents is also a presumed parent under Section 7540, the presumption arising under Section 7540 may only be rebutted pursuant to Section 7541.

(c) 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.

(d) Unless a court orders otherwise after making the determination specified in subdivision (c), a presumption under Section 7611 is rebutted by a judgment establishing parentage of the child by another person.

(e) Within two years of the execution of a voluntary declaration of paternity, a person who is presumed to be a parent under Section 7611 may file a petition pursuant to Section 7630 to set aside a voluntary declaration of paternity. The court’s ruling on the petition to set aside the voluntary declaration of paternity shall be made taking into account the validity of the voluntary declaration of paternity, the best interests of the child based upon the court’s consideration of the factors set forth in subdivision (b) of Section 7575, and the best interests of the child based upon the nature, duration, and quality of the petitioning party’s relationship with the child and the benefit or detriment to the child of continuing that relationship. In the event of a conflict between the presumption under Section 7611 and the voluntary declaration of paternity, the weightier considerations of policy and logic shall control.

(f) A voluntary declaration of paternity is invalid if, at the time the declaration was signed, any of the following conditions exist:

(1) The child already had a presumed parent under Section 7540.

(2) The child already had a presumed parent under subdivision (a), (b), or (c) of Section 7611.

(3) The man signing the declaration is a sperm donor, consistent with subdivision (b) of Section 7613.

(g) A person’s offer or refusal to sign a voluntary declaration of paternity may be considered as a factor, but shall not be determinative, as to the issue of legal parentage in any proceedings regarding the establishment or termination of parental rights.

(h) This section shall remain in effect only until January 1, 2020, and as of that date is repealed.

(Amended by Stats. 2018, Ch. 876, Sec. 47. (AB 2684) Effective January 1, 2019. Repealed as of January 1, 2020, by its own provisions. See later operative version added by Stats. 2018, Ch. 876.)

FAMILY CODE 7646

(a) Notwithstanding any other provision of law, a judgment establishing paternity may be set aside or vacated upon a motion by the previously established mother of a child, the previously established father of a child, the child, or the legal representative of any of these persons if genetic testing indicates that the previously established father of a child is not the biological father of the child.  The motion shall be brought within one of the following time periods:

(1) Within a two-year period commencing with the date on which the previously established father knew or should have known of a judgment that established him as the father of the child or commencing with the date the previously established father knew or should have known of the existence of an action to adjudicate the issue of paternity, whichever is first, except as provided in paragraph (2) or (3) of this subdivision.

(2) Within a two-year period commencing with the date of the child’s birth if paternity was established by a voluntary declaration of paternity.  Nothing in this paragraph shall bar any rights under subdivision (c) of Section 7575 .

(3) In the case of any previously established father who is the legal father as a result of a default judgment as of the effective date of this section, within a two-year period from January 1, 2005, to December 31, 2006, inclusive.

(b) Subdivision (a) does not apply if the child is presumed to be a child of a marriage pursuant to Section 7540 .

(c) Reconsideration of a motion brought under paragraph (3) of subdivision (a) may be requested and granted if the following requirements are met:

(1) The motion was filed with the court between September 24, 2006, and December 31, 2006, inclusive.

(2) The motion was denied solely on the basis that it was untimely.

(3) The request for reconsideration of the motion is filed on or before December 31, 2009.