Father Living Double Life is Presumed Father of his Girlfriend’s Child

A California Court of Appeals has ruled that a sperm donor whose paternity cannot be established under California Family Code Section 7613 (conception through donation by a donor other than spouse) may still be presumed to be the father under California Family Code Section 7611(d) (openly holding out the child as his or her natural child) and be ordered to pay child support.

In the case of County of Orange v. Cole, Mother and Father met in 1991, but they did not begin a sexual relationship until 2005. Mother knew that Father was married and had two children, but she believed that he was separated from his wife. After Mother and Father decided to raise a child together, Father had a surgical procedure done in order to extract his sperm and Mother, at her own expense, underwent in vitro fertilization using his sperm. Father was present when their Child was born in February of 2008, and he chose the babys name. After that, Father spent one or two nights per week at Mothers home. Since Father was a pilot, Mother believed that he spent the rest of the time out of town.

Father held himself out to Mothers family and friends as Childs father, did not correct those who said he was Childs father, and did not correct Child when Child called him Daddy. Father did not pay child support for Child, but he bought Mother a car, paid her $500 per month for rent on garage space, and helped with Mothers mortgage payments during 2009. However, Father did not bring Child to his residence with his wife, never introduced Child to his wife and other kids, and failed to tell his friends and family about Child. Also, Father did not add Child to his insurance or estate planning documents, and said that he did not intend to have a relationship with Child. His wife and kids knew nothing of Childs existence.

In 2010, Father told Mother that he was cutting off all contact with her and Child, and would not be financially responsible for Child. In August of 2014, the County of Orange filed a petition seeking a paternity judgment against Father, as Childs father, and an order for child support. In response, Father denied that he was Childs biological dad. In a statement of decision issued after a trial, Trial Court found that Father had clearly discussed fathering a child with Mother, had undergone a surgical procedure to provide his sperm, and had intended to have a child with Mother. Trial Court also found that for a period of two and one-half years, Father had two homes, one with his wife and kids, and the other with Mother and Child. During that time, Trial Court said, Father had a relationship with Child, spent two to four days per week at Mothers house, paid some of Mother and Childs expenses, and held himself out as Childs father to Mothers friends and family. Trial Court concluded that Father was Childs presumed father under Family Code Section 7611(d) [took Child into his home and held Child out as his child] and ordered Father to pay child support for Child.

Claiming that Family Code Section 7613 [donor who provides sperm to physician for use by a woman not his wife is not treated as natural father of resulting child] precluded Trial Court from finding that he is Childs presumed father, F appealed. However, California Court of Appeals has now affirmed Trial Courts decision. The Appellate Court has ruled that (1) pursuant to the Appellate Courts decision in the case of Jason P. (2014) 226 Cal.App.4th 167, Family Code Section 7613 does not preclude finding that a man who meets qualifications under Family Code Section 7611(d) is child’s presumed parent; (2) the evidence here supports Trial Courts finding that Father is Childs presumed father (his failure to reveal Childs existence to his other family and his stated intention not to have a relationship with Child are trumped by his actions before and for two and one-half years after Childs birth); and (3) Family Code Section 7611(d) does not require Father to hold Child out as his child in every situation and does not protect fathers who lead double lives.

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