A California Court of Appeals has ruled that a Trial Court was not wrong in concluding that biological father who sought to establish a parental relationship with his biological child did not qualify as her presumed father because he failed to receive her into his home as required by California Family Code Section 7611(d). In order to meet the “receiving requirement,” biological father needs to show that he assumed parental responsibilities, not just that child was occasionally present in his home.
In the case of W.S. v. S.T., Mother and Father were married in 2002. Later that year, Mother gave birth to their Son. Mother and Father separated in 2006, at which time Mother filed for divorce and they began living apart. During their separation, in 2007 or 2008, Mother met Boyfriend at work and began a relationship with him. Boyfriend believed that Mother was divorced and lived with her mother.
In 2008, Mother became pregnant with Daughter. She would later state that she had reconciled with Father and was living with him when Daughter was conceived. She told Boyfriend she was pregnant, but that the child was not his; he apparently accepted the news without question. During Mother’s pregnancy, Father went to prenatal classes, drove Mother to the hospital when she was in labor, and was present and cut the umbilical cord when Daughter was born. Father’s name appeared on Daughter’s birth certificate as her father. Father also took several weeks of parental leave to help Mother with Daughter’s care after she was born. Father also said that he helped care for Daughter, changing her diapers, washing her laundry, and rocking her to sleep. When Mother ceased breast-feeding Daughter, Father helped prepare the baby’s bottles. Daughter slept with Mother and Father until she was four and a half years old.
Meanwhile, not long after Daughter’s birth, Mother began to suspect that Boyfriend was Daughter’s biological dad “based on her features.” Unbeknownst to Father, Mother and Boyfriend got a DNA testing kit at the drugstore, and the results confirmed Mother’s suspicions. They did not tell Father, who still believed he was Daughter’s father. As years went by, Mother and Boyfriend had a “tumultuous” relationship, but Mother allowed Boyfriend and Daughter to see each other fairly regularly and to take trips with Boyfriend, his mother, and Mother. She and Boyfriend broke up and resumed their relationship “numerous times.” In July of 2014, Mother finally told Father about her relationship with Boyfriend. Father promptly filed for divorce.
On August 22, 2014, Boyfriend filed a petition to establish a parental relationship with Daughter, claiming that he was her biological father, seeking joint legal and physical custody and visitation, and asking that Daughter’s last name be changed to his. In response, Mother claimed that Daughter was not Boyfriend’s daughter, that her relationship with Boyfriend took place before she became pregnant, that Daughter was born during her marriage to Father and while they were living together. Father moved for joinder, contending that he was a necessary party in the action because he was conclusively presumed to be Daughter’s father under California Family Code Section 7540. Mother filed a declaration stating that she was cohabiting with Father when Daughter was conceived and asserting that the Family Code Section 7540 presumption trumped Family Code Section 7611(d) presumed fatherhood presumption.
At the hearing on October 21, 2014, Trial Court first determined that Father was a necessary party because of the Family Code Section 7540 presumption and granted Father’s motion for joinder. Trial Court then considered whether Boyfriend qualified as a presumed father under Family Code Section 7611(b) [received child into his home and held child out as his own]. Boyfriend testified that he saw Daughter almost every day between 2009, and 2010, that Daughter stayed overnight at his apartment once or twice a week, and that he made bottles for her by putting a scoop of formula and some warm tap water into the bottle. Boyfriend also stated that he began feeding Daughter chopped cooked vegetables when she was between six and nine months old. Boyfriend testified that he saw less of Daughter after she began going to daycare. When she started preschool in 2013, Boyfriend claimed that she used his last name, he paid for a year’s tuition, and he and Mother frequently picked her up. Daughter’s teacher confirmed that Boyfriend participated in school activities, attended parent-teacher conferences, and was called “Pa” or “Daddy” by Daughter. Boyfriend also said he had given birthday parties for Daughter at ages three, four and five, had taken her on trips with Mother, and celebrated numerous holidays with her. Boyfriend admitted that he did not have Daughter on his health insurance plan and did not know any of her doctors or dentist. However, he said he paid Mother’s cell phone bill and gave Mother money every once in a while.
Mother testified that Boyfriend “exaggerated the closeness of his relationship” with Daughter, actually saw Daughter only once or twice a week for brief visits, and had only one overnight visit with Daughter when she was an infant. Mother refuted Boyfriend’s claims regarding feeding Daughter, saying she would not have permitted Daughter to drink formula from unsterilized bottles and did not start Daughter on solid food until she was between one and two years old, when she began eating pureed food (not chopped veggies). Mother admitted that Boyfriend paid for half of Daughter’s preschool tuition, went with her to pick up Daughter from preschool, and had Daughter over to his apartment to play after school. She also admitted going on trips with Boyfriend and Daughter, and taking Daughter over to Boyfriend’s on Daughter’s birthdays, Christmas, and Halloween for trick or treating. In addition, Mother asserted that Boyfriend hid Daughter’s toys when she was not there, so that relatives did not know of her existence.
Father testified that Daughter was home at night for all but a few nights, and could not have been with Boyfriend as often as he claimed without Father’s noticing. Father told Trial Court that he was “very involved” in Daughter’s life, put her on his health insurance, scheduled her dentist appointments, and saw to her basic needs. He said he was not extensively involved in Daughter’s preschool, which he believed that Mother paid for. Father admitted filing for divorce when he learned of Boyfriend’s relationship with Mother and Daughter, but asserted that he and Mother were working on their marriage and were not going forward with their divorce when Boyfriend filed his petition.
On March 19, 2015, Trial Court issued a statement of decision, denying Boyfriend’s requests for custody and visitation and concluding that Boyfriend had not qualified as a Family Code Section 7611 presumed father because he had not received Daughter into his home, as required by that statute, had regular visitation with Daughter, or assumed parent-type obligations and duties. Claiming, among other things, that Trial Court did not apply the proper standard in determining whether he had received Daughter into his home, Boyfriend appealed. But, now, California Court of Appeals has issued a ruling affirming Trial Court’s decision.
The California Appellate Court has found that (1) the receiving into your home requirement in Family Code Section 7611(d) requires more than the child’s physical presence in biological father’s home; (2) biological father must have demonstrated a parental relationship based on his having assumed parental responsibilities, showed his commitment to the child, and provided support for the child (Trial Court correctly used this standard); (3) Trial Court was not wrong by considering some of the same factors that it would have used to determine whether Boyfriend was Kelsey S. father (when an unwed father promptly demonstrates a full commitment to his parental responsibilities, he is entitled to the recognition of his real parental relationship absent a showing of unfitness); (4) Trial Court was also not wrong in declining to order visitation for Boyfriend as an interested non-parent or a parent (Boyfriend is only biological father, not natural parent); (5) Boyfriend’s constitutional claims fail because he did not discuss them at trial and did not have a protected liberty interest in establishing a parental relationship with Daughter; and (6) Boyfriend’s claim of bias has no merit (Trial Court’s finding Mother credible did not constitute bias).