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Child Can Have One Mother and Two Fathers

Posted By Anthony P. Azemika, Esq.   |   Comments (0)
Family Law, Divorce, Adoption, Child Custody & Visitation, Legal Cases,

 

 

A California Court of Appeals has ruled that a Trial Court was correct in ruling that Child has three parents and that Husband’s paternity having been established under California Family Code Section 7540 conclusive presumption does not preclude biological Father from being the third parent of Child. California Family Code Section 7612(c) applies even where there is a stable marriage.

In the case of C.A. v. C.P., Mother had an affair with a co-worker (Father) in 2011, who was told by Mother that she was separated from her husband (Husband). In fact, Mother and Husband were not separated and were cohabiting during the affair. When Mother and Father conceived a child, Mother initially kept that news from Husband and from her employer; Mother told Father that she didn’t want their other co-workers to know about their affair. Husband later learned of Mother’s pregnancy by Father, but chose to continue with the marriage. Mother and Father’s Child was born in July of 2012.

For three years after Child’s birth, Mother and Husband allowed Father to take a parenting role in her life. Father received Child into his home, held her out as his child to his relatives, participated in Child’s medical evaluations and paid child support. From the time that Child was seven months old, Father “had regular overnight parenting” on some weekends and saw Child during the week. Father believed that Child carried his last name, until he learned otherwise when Child was eight months old. Meanwhile, Child became closely bonded to Father and his family.

In November 2015, Father filed a petition to establish his paternity of Child, to change her name, and to undergo paternity testing. Mother and Husband then barred Father from having anything to do with Child, and Father stopped paying child support.

At a preliminary hearing, Trial Court issued an order for paternity testing. However, Trial Court denied Father’s request for visitation based on Mother’s testimony minimizing Father’s involvement in Child’s life. After a trial, Trial Court found that Mother’s “misleading portrayal” of Father’s involvement caused it to deny the visitation orders it would otherwise have granted, and that despite the period of time that Father and Child were separated, Child was still strongly bonded to Father. Trial Court found that Father was Child’s presumed father under Family Code Section 7611(d) [received child into his home and held her out as his child] and that Husband was Child’s presumed father under Family Code Section 7540 [conclusive presumption that child born during marriage is child of cohabiting husband who is not impotent or sterile]. Trial Court determined that Child was strongly bonded to Mother, Husband, and Father, and that applying Family Code Section 7612(c) [three-parent statute] is appropriate to preclude Child from suffering detriment. Trial Court also ordered parties to mediation to resolve any custody conflicts and added Father’s last name to Child’s existing names (but not as her last name).

Claiming that Trial Court was wrong in applying Family Code Section 7612(c), Mother and Husband appealed. Now, California Court of Appeals has affirmed Trial Court’s decisions. The Appellate Court has ruled that (1) Husband’s having qualified as Family Code Section 7540 father does not preclude Father from bringing paternity suit, qualifying as Child’s presumed father, or being named Child’s third parent (second father); (2) Mother and Husband’s having a stable marriage does not preclude Trial Court from applying Family Code Section 7612(c); (3) period of separation for Father and Child does not mean that Father cannot be third parent where there is a continuing strong bond between the two; (4) Trial Court discussed all appropriate factors before determining that Child has three parents; (5) Family Code Section 7612(c) does not impinge on state’s right to protect marriage or on Mother and Husband’s ability to exercise their parental rights; and (6) Mother and Husband’s claim re Father’s standing to request a paternity test is moot because the test was already done and the justices “cannot undo that which was done.”

 

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