Parentage – Will the real father please stand up?

If the parties are married, are registered domestic partners, or parentage has already been determined, a Petition to Determine Parental Relationship (Form FL-200) is not required prior to seeking custody, support, or visitation orders unless one of the parties is denying the parental relationship.

Otherwise, the issue of parentage must be resolved prior to determining custody, visitation, or support. This involves identifying who the law recognizes as a child’s legal parent, which in turn dictates custody, visitation rights, and support obligations. The Uniform Parentage Act (UPA) provides the framework for handling parentage actions in California, including grounds, authority, and procedures. California courts may address parentage in various contexts, including child support proceedings initiated by the Department of Child Support Services (DCSS), actions related to child support under the Uniform Interstate Family Support Act (UIFSA), and cases under the Domestic Violence Prevention Act (DVPA). Parentage for children born outside of marriage can be determined in proceedings for dissolution, legal separation, or child support.

Parentage may be established in multiple ways:

• Giving birth to a child, except as a surrogate. (Family Code §7610(a)).
• Being a natural mother’s actual or putative spouse or registered domestic partner. (Family Code §§7540, 7611(a)—(c)).
• Being the spouse of a woman who conceives through assisted reproductive techniques with the consent of the spouse or being the intended parents of a child conceived through assisted reproductive techniques. Family Code §7613; see also Marriage of Buzzanca (1998) 61 Cal App 4th 1410, 1413).
• Receiving a child into one’s home and holding the child out as one’s own natural child. (Family Code §7611(d)).
• Signing a parentage declaration. (Family Code §§7570-7577).
• Signing a stipulation of parentage in a domestic violence case (Family Code §6323(b)(2)) or other action under the UPA (Family Code §§7600 et seq).
• Adoption (Family Code §§7610(b), 8616).

Marital Presumption

If a child is born to a wife living with her husband who is not impotent or sterile, it is conclusively presumed that the child is a product of their marriage. This presumption, as outlined in Family Code §7540, hinges on three conditions: the existence of marriage, cohabitation, and the husband’s potency and fertility at the time of the child’s conception.

However, courts have ruled that this presumption cannot be applied in certain cases without violating due process, particularly when its application does not serve the societal goal of promoting family unity, which is the underlying principle of the statute. (See Comino v Kelley (1994) 25 Cal App 4th 678; County of Orange v Leslie B. (1993) 14 Cal App 4th 976).

Three situations exist in which an individual is presumed to be the parent of a child due to their marriage to the biological mother (Family Code §7611(a)—(c)):

• If the child is born during the marriage or within 300 days after termination of the marriage by death, annulment, divorce, declaration of invalidity, or separation.
• If the presumed parent and the biological mother of the child tried to enter into a legal marriage before the child’s birth, and either:
  • The child was born during the attempted marriage or within 300 days following its conclusion due to death, annulment, declaration of invalidity, or divorce; or
  • If the attempted marriage is deemed invalid without a court order and the child is born within 300 days after the cessation of cohabitation.
• If subsequent to the child’s birth, the presumed parent and the child’s biological mother have wedded, or endeavored to wed, and either of the following conditions applies:
  • The presumed parent is listed as the child’s parent on the birth certificate with their consent, or
  • The presumed parent is bound to provide support to the child through a written voluntary commitment or by court order.

Voluntary Declaration

Parentage can also be established through a written voluntary declaration of paternity submitted to DCSS, carrying the same legal weight as a court-issued judgment for paternity under Family Code §§7570 et seq. This voluntary declaration serves as a foundation for decisions regarding child custody, visitation, or child support, as outlined in Family Code §7573. As a formal legal ruling, the voluntary declaration overrides any presumption of paternity concerning another alleged parent under Family Code §7611, unless a court determines that more than two individuals hold parental rights, as specified in Family Code §7612(d).

The case of Kevin Q. v Lauren W. (2009) 175 Cal App 4th 1119, illustrates that a voluntary declaration supersedes a rebuttable presumption of paternity. (See also In re Cheyenne B. (2012) 203 Cal App 4th 1361)

A person’s offer to sign or his choice to decline signing a voluntary declaration of paternity can be taken into account as one factor in determining parentage, but it does not solely determine the matter of legal parentage in any proceedings that establish or terminate parental rights, as stated in Family Code §7612(g).

In an action under the DVPA, the court may accept a stipulation of paternity by the parties and, if paternity is uncontested, enter a judgment establishing paternity subject to the set aside provisions in Family Code §7646 (Family Code §6323(b)(2)).

The parties can also agree to parentage in any proceeding initiated under the UPA or in a case brought by DCSS under Family Code §17410.  Such a stipulation is legally binding and cannot be reexamined, even if nonbiological parentage is confirmed at a later stage (see Robert J. v Leslie M (1997) 51 Cal App 4th 1642).

Holding child out as his own – parentage by estoppel

Family Code §7611(d) establishes a presumption of parentage when the presumed parent welcomes the child into their household and openly presents the child as their biological offspring. There is no specific duration required for someone to welcome the child into their home; instead, the act of welcoming the child must be unmistakable enough to clearly indicate the nature of the relationship. Moreover, there is no fixed requirement for the number or types of public acknowledgments needed to fulfill the obligation of presenting the child as one’s own, as outlined in Charisma R. v Kristina S. (2009) 175 Cal App 4th 361, 374-375.

It is a question of fact – has there been an unambiguous public acknowledgment of a parental relationship.

A series of cases (Clevenger v Clevenger (1961) 189 Cal App 2nd 658; Marriage of Valle (1975) 53 Cal App 3rd 837; Marriage of Johnson (1979) 88 Cal App 3rd 848) has established that the actions of a husband, despite lacking biological ties to a child, may prevent the husband from avoiding parental responsibilities even after the dissolution of the husband’s marriage to the child’s mother. The concept of parentage by estoppel applies when, despite the absence of biological parentage, the circumstances indicate that:

• The party presented themselves to the child as their biological parent and intended for the child to trust this representation;
• The child trusted this representation;
• The child was unaware of the actual facts.

“The courts have recognized the importance of a putative father continuing his paternal relationship with a child, including providing emotional and financial support, when the father has represented to the child and the child has been led to believe over a lengthy period of time that the father is his natural father.” (Marriage of Pedregon (2003) 107 Cal App 4th 1284, 1290)

In contrast to the presumption outlined in Family Code §7611(d), parentage by estoppel requires a sustained relationship between the parent and the child, hindering the child’s chance to uncover the identity of their biological father.

The presumption of parentage by estoppel does not apply if the father believed he was the natural father of the child (County of San Diego v Arzaga (2007) 152 Cal App 4th 1336, 1347-1348).