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Saturday, April 26, 2008

What is a "Presumed Father"?

Here is an interesting question that was posed on the Avvo website (incidentally, a wonderful website with tons of resources and the "ins and outs" of attorneys).

"My wife nor I ever told the third party he was the father of our little girl. We never pursued child support or asked for any type of help at all. I was in the hospital when she was born, I signed the birth certificate, and I am raising her. Now, my daughter is age two, he wants to do a paternity test. Neither me or my wife want this done. What are his rights?"

This entry will discuss the difference between a biological father and a presumed father. In California, 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:

So what is a presumed father?
A man is a presumed father if:
1) he was married to and cohabiting with the mother at the time of conception, and was not impotent or sterile. [FC §7540 et seq.]; OR

2)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.]; OR

3) 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).] OR

4)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).]

5) 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

6) He is obligated to support the child under a written, voluntary promise or by court order. [FC §7611(c).] OR

7) He receives the child into his home and openly holds out the child as his natural child. [FC §7611(d).]

The presumption may be rebutted by clear and convincing evidence [FC §7612(a)], or by a judgment establishing paternity by another man [FC §7612(c)]. IT IS IMPORTANT TO REMEMBER THAT THERE CAN BE MORE THAN ONE PRESUMED FATHER. And when there are competing presumed fathers, the biological paternity of one father does not necessarily rebut the presumed status of the other man.

So what's the answer to the original question. If you had presumed father status, this would effectively override any biological father claims.

It is important to remember that presumed father status MUST be raised in order to successfully challenge a bio dad's paternity action. I once had a case where I represented the bio dad, and on the other side, there was a presumed father. The mother's attorney never raised the issue, and I was able to successfully obtain custody and visitation for my client.

Yes, I know this is confusing. If you have any questions, please discuss with someone well-versed in California Family Law.

4 comments:

pursuinghappiness said...

so If I was married & still am, but conceived a child in an affair & my husband has provided for us, accepts the child as his own, we live with him- do we have to grant visitation to the biological father?

UC said...

did you make a bid to try to keep the biological father from requesting visition?

pursuinghappiness said...

I was served exparte on a Friday to appear on Monday. I went to a paralegal to file my response & since it was over the weekend he didn't really ask me what I wanted. I recently went over the paperwork & it says that I agree to reasonable visitation (and we live across country). So the answer is no. Can I do so now?

kirk_vaughn said...
This comment has been removed by the author.