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§3.07 Parentage

[1] Initial Inquiry
[2] Framework for Determination
[3] Presumed Father Status
[4] Domestic Partners

[1] Initial Inquiry

At the detention hearing or as soon as possible thereafter, you must inquire into the identity and address of any or all presumed and alleged parents. You must ask about all presumed or alleged parents even if the person claiming to be a parent appears at the hearing. [WIC §316.2(a); CRC 5.635(a), (b), 5.668(b).] You must also direct your clerk to send an inquiry form [see form JV-500] to the local child support agency. [CRC 5.635(d)(2).]

Suggested initial questions regarding parentage are set forth in WIC §316.2(a) and CRC 5.635(b). Generally you begin by determining whether there is a prior finding of parentage. [See CRC 5.635(d).] The alleged parent may also file a statement regarding parentage. [See form JV-505.] You must note any of your parentage findings in the minutes. [WIC §316.2(f).] For a form of findings and judgment of parentage, see form JV-501.

You must ensure that notice to an incarcerated alleged father is in accordance with all statutory requirements of WIC §316.2(b), which include sending notice by registered mail with a copy of the petition and a paternity-waiver of rights form (form JV-505). [In re Kobe A. (2007) 146 CA4th 1113, 1120.]

Tip

You may determine parentage by the presentation of evidence under CRC 5.635, or by blood or genetic tests. [CRC 5.635(e).] You are not required, however, to order or examine biological evidence, and may not order genetic testing of a man who meets the statutory test for a presumed father when no other man is asserting paternity. [In re Raphael P. (2002) 97 CA4th 716, 735–736.]

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[2] Framework for Determination

You make parentage determinations under the statutory framework provided in the Uniform Parentage Act. [FC §7600 et seq.; Gabriel P. v Suedi D. (2006) 141 CA4th 850, 856–857.]

A number of statutory presumptions identify circumstances under which a parental relationship may be established. [FC §7600.] California law distinguishes between “alleged,” “biological,” and “presumed” parents. [Francisco G. v Superior Court (2001) 91 CA4th 586, 595.]

An alleged parent is one who [In re Zacharia D. (1993) 6 C4th 435, 449 n15]:

  • May be the biological parent of a child, but whose biological parentage has not been established; or
  • Has not achieved presumed parent status.

A presumed parent must show by a preponderance of the evidence, among other statutory grounds, that the parent [FC §7611(d); In re Spencer W. (1996) 48 CA4th 1647, 1652–1653]:

  • Received the child into his or her home, and
  • Held the child out as his or her natural child.

Tip

More than one individual may meet the statutory criteria required to give rise to a presumption of parentage, but there can only be one presumed parent once you reconcile competing presumptions. [In re Jesusa V. (2004) 32 C4th 588, 603.]

A purported parent may have a constitutional right under due process and equal protection clauses to preserve the opportunity to develop a parental relationship with a child. [In re J.O. (2009) 178 CA4th 139, 151.] You may determine that such a parent has standing to establish parentage when the purported parent demonstrates that he or she acted as promptly as was reasonably possible to establish parentage and that the other parent’s conduct prevented them from satisfying factual predicates needed to achieve presumed parent status. [Adoption of Kelsey S. (1992) 1 C4th 816, 827.]

A father in these circumstances is sometimes called a Kelsey father. However, the Kelsey rule has been narrowed in dependency proceedings, such that a biological father who fails to assert paternity until permanency planning phase is not constitutionally entitled to reunification services, even if the father does not know of the child’s existence until the case is in permanency planning, absent a showing that reunification services would be in the child's best interest. The state's and child’s interests are unique in a dependency proceeding and require higher protection for the child than in a private adoption. [In re Vincent M. (2008) 161 CA4th 943, 955, 958.] You must consider the purported parent’s conduct both before and after the child’s birth, including any public acknowledgment of paternity, payment of pregnancy and birth expenses commensurate with the parent’s ability to do so, and prompt legal action to seek custody of the child. [In re J.O. (2009) 178 CA4th 139, 151.]

You may also be asked to resolve issues of the maternal relationship. A child has standing to bring an action under the Uniform Parentage Act to determine the existence of a mother-child relationship. [FC §7650; In re Karen C. (2002) 101 CA4th 932, 935–936.] A woman who is actually raising a child and whom the child believes is his or her mother may be that child’s presumed mother. [In re Salvador M. (2003) 111 CA4th 1353, 1358–1359.]

How Would You Rule?

[3] Presumed Father Status

Presumed fathers are accorded greater rights than natural fathers, such as the right to counsel and reunification services. [In re A.A. (2003) 114 CA4th 771, 779-780; see WIC §361.5(a).] Services are discretionary for non-presumed parents. Due process for an alleged father requires only that he be given notice and an opportunity to appear and assert a position and attempt to change his paternity status, and he is not entitled to appointed counsel or to reunification services. [In re Kobe A. (2007) 146 CA4th 1113, 1120.] A man is a presumed father of a child if he meets any of the following conditions:

  • He was married to and cohabiting with the mother at the time of conception, and was not impotent or sterile. [FC §7540 et seq.]
  • He and the mother were not married, but they both executed and filed a witnessed voluntary declaration with the Department of Child Support Services. [FC §7570 et seq.] A voluntary declaration of paternity signed in another state has the same force and effect as a paternity declaration signed in California. [In re Mary G. (2007) 151 CA4th 184, 198.]
  • He and the child's natural mother are married or were married, 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 entry of a judgment of separation. [FC §7611(a).]
  • He and the child's mother tried to marry before the child is born, but the marriage is not legal, and the child is born either:
    • During the attempted marriage or within 300 days after the marriage is declared invalid, or
    • Within 300 days of cohabitation if the attempted marriage is invalid without a court order. [FC §7611(b).]
  • After the child is born, he and the mother marry or attempt to marry and
    • He consents to being named on the child's birth certificate, or
    • He is obligated to support the child under a written, voluntary promise or by court order. [FC §7611(c).]
  • He receives the child into his home and openly holds out the child as his natural child. [FC §7611(d).]
  • The child is in utero after the decedent's death and the conditions in Probate Code section 249.5 are satisfied. [FC §7611(f).]

This presumption may be rebutted by clear and convincing evidence [FC §7612(a)], or by a judgment establishing paternity by another man [FC §7612(c)]. When there are competing presumed fathers, the biological paternity of one father does not necessarily rebut the presumed status of the other man. You must identify the presumption which on the facts is based on the weightier considerations of policy and logic. [FC §7612(b); In re Jesusa V. (2004) 32 C4th 588, 606-607.]

The presumption created by evidence that a man received a child into his home and held out the child as his own may be rebutted by a showing of repugnant conduct that is detrimental to the child, for example, inappropriate sexual conduct with the child and prior convictions for sexually molesting children. [In re T.R. (2005) 132 CA4th 1202, 1211–1212.]

Whether the presumption of parentage is rebutted is a matter to be determined within the discretion of the trial court. [Charisma R. v Kristina S. (2009) 175 CA4th 361, 378.]

Within two years of a voluntary declaration of paternity being executed, a presumed parent may petition under FC §7630 to set aside the voluntary declaration. [FC §7612(d) (includes factors you must weigh).] A paternity declaration is invalid when signed if the child already had a presumed parent, or if the man signing the declaration is a sperm donor. [FC §7612(e); see FC §7613 (artificial insemination).]

[4] Domestic Partners

Two women may be the parents of a child. Under the domestic partner statutes, the rights and obligations of registered domestic partners with respect to a child of either of them are the same as those of spouses. [Elisa B. v Superior Court (2005) 37 C4th 108, 119.]  A woman who supplies ova to her lesbian partner that is fertilized in vitro and implanted into her lesbian partner is a parent of the resulting child based on her genetic relationship to the child. [K.M. v E.G. (2005) 37 C4th 130, 138.]

Under a gender-neutral application of the statutory scheme governing parentage determinations, a former lesbian domestic partner may be a presumed parent under the same statutory criteria as that applied for a presumed father in FC §7611(d). [Charisma R. v Kristina S. (2006) 140 CA4th 301, 304.]  If you determine that such a parent meets the statutory presumption for a presumed parent, you should next make findings whether there are true facts consistent with those found that failed to rebut the presumption in Elisa B. v Superior Court, supra,  37 C4th at 125, namely (1) whether the presumed parent actively participated in causing the child to be conceived with the understanding that she would raise the child as her own together with the first parent, (2) whether the presumed parent voluntarily accepted the rights and obligations of parenthood after the child was born, and (3) that there are no competing claims to being the child’s second parent. The presumption may not be rebutted by evidence of no genetic relationship between the presumed parent and child. [Charisma R. v Kristina S., supra, 140 CA4th at 307.]

In a same–sex domestic partner relationship, a child may have two natural mothers under the Uniform Parentage Act (UPA), i.e., a biological mother and a mother meeting statutory presumed parent criteria. [Scott v Superior Court (2009) 171 CA4th 540, 544545.] Moreover, a lack of biological connection to a child does not prevent a purported same–sex parent from holding out child born to the other partner, as the “natural” child within meaning of statute governing establishment of presumed parentage. [Charisma R. v Kristina S. (2009) 175 CA4th 361, 375.]


   
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© 2006 by Judicial Council of California
updated as of January 1, 2012