California Court of Appeal Says a Child Can Have Three Parents

In the recent opinion C.A. v. C.P. (Cal. Ct. App., 11/13/2018), the California Court of Appeals says a child can have three parents.

That concept on its own is not new in California; however, the manner in which the Court got there is new.  Under Family Code Section 7611(d), a father is a presumed parent if he has held a child out as his own for a period of time–essentially telling the word that a particular child is his and acting accordingly.  However, under Family Code Section 7611(a), there was a presumption that a child born during a marriage had a father who was the husband of the marriage.  In the past, given these competing presumptions, the idea was that the non-spouse “father,” whether or not he was the real biological father could only challenge the presumption that husband was the father if a paternity test was done during two years (Family Code Section 7541).  The reason why is that given the competing presumptions under 7611(d) and 7611(a), the courts would generally favor the married “father” whether or not he was the “real father,” unless there was biological proof within the requisite two year time frame under 7541–with the overarching assumption that a child should only have two parents.

What’s new here?  The Court in this decision says forget about only having two parents.  If there is a 7611(a) father (presumed father due to marriage), and a 7611(d) father (presumed father due to holding the child out as his own), and a mother–that is just fine if we have three parents who should go to mediation and determine a parenting plan and legal custody terms.

Lead Justice Duarte says as follows:

“The child was born in July 2012 to wife, who was then and remains married to husband. . . . Defendants [the husband and wife] never questioned plaintiff’s status as the child’s biological father, a fact each defendant had known before the child was born. Wife led plaintiff to believe she was separated but continued to cohabit with husband without plaintiff’s knowledge. Plaintiff and wife were coworkers, and wife wanted to ensure other coworkers did not find out about the affair, which caused plaintiff to refrain from seeking paternity leave from their employer. Plaintiff was involved with the child’s early medical evaluations and treatment, openly held her out as his daughter, received her into his home, paid child support, and had regular visitation until defendants cut him off after he filed the instant petition. Plaintiff’s close relatives (sister, nieces, and mother) also developed relationships with the child. Plaintiff had thought the child bore his last name until he saw a prescription bottle showing otherwise, when the child was about eight or nine months old.

Plaintiff had regular overnight parenting that increased over time to every other weekend, and saw the child “from time to time” during the week, from when the child was about seven months old until late in 2015, when this petition was filed. . . . [P]laintiff [paid] informal child support payments, set in an amount determined by wife. Plaintiff only stopped paying when defendants refused to let him continue to see the child. Plaintiff respected the marriage and wanted to co-exist with husband; in turn, husband was committed to maintaining his marriage and conceded that if the roles were reversed he would want to be recognized as a third parent.

The trial court found “no doubt” the child was “well bonded to [plaintiff] and his extended family” and that “he has established a strong, long and enduring bond with” her that defendants had allowed to form. Plaintiff and husband were each found to be a presumed father of the child. Weighing the two presumptions, the court found it appropriate to recognize all three adults as parents, otherwise the child would suffer detriment. The judgment declares that the child has three parents who shall share custody, with mediation to resolve any conflicts, and also adds plaintiff’s last name to the child’s existing set of names, though not as her last name.”

So you can see why the trial court did what it did.

The harder part is how this holding fits within California’s existing statutes.  For the most part–it doesn’t.

The Court of Appeal  Legislature tried to hedge that issue by saying that just because the State Legislature said that the husband of a child born during a marriage is conclusively presumed to be “Daddy,” that doesn’t mean that he’s the only Daddy.  You can have two (plus a Mommy).  Hence the decision here.

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