Man Who Slept with Married Woman Is Not Father

In affirming the Trial Courts decision, a California Court of Appeals has ruled that the petition of a man, who sought to assert paternity of twins born during Mothers marriage to another man, should not have been granted because he had no personal relationship with the twins and he could not rebut the presumed paternity of Mothers husband under California Family Code Section 7611(a) and (d). In the case of Neil S. v. Mary L., Mother and Father were married in June of 2001. Father was present when Mother gave birth to the twins on May 2, 2009, and claimed the twins as his own children. In February of 2010, another man filed a petition to establish his paternity of the twins and sought genetic testing, joint custody, and reasonable visitation. In his supporting declaration, the other man asserted that between May 2008, and October 2008, while he and Mother were stationed in Bahrain with the U.S. Navy, he and Mother had an affair. Despite the fact that both were married to other people, the other man contended that they made plans to marry. The other man further stated that after Mother returned to San Diego in October of 2008, she came back to Bahrain and discovered she was pregnant. He also claimed that Mother told him that he was the father. He also said that from then until Mother left in February of 2009, he took care of her, took her to the doctor appointments, and read and sang to the twins in Mothers body. After Mother went back to San Diego, the other man said she told him that she and Father would be raising the babies and Fathers name would be on their birth certificate.

Mother moved to quash the other mans petition, claiming he lacked the standing and could never qualify as the twins presumed parent, and that Father was their father under the conclusive paternity presumption. Mothers supporting declaration described her relationship with the other man as less close and extensive. Mother contended that she and Father had conceived the twins between October 8, 2008, and October 22, 2008, while they were living together and having sexual relations. Mother also stated that she had learned that she was pregnant in November of 2008, after which Father was involved in all aspects of preparing for the twins birth, helped to care for the twins after their birth, and was named as the twins father on their birth certificates. Mother, who was making the Navy her career, also stated that Father was a “stay-at-home dad and [the twins] primary caregiver.”

In opposition, the other man argued that marital presumption of paternity did not apply, cited California’s compelling interest in establishing paternity, and claimed that public policy mandated learning the twins true paternity. He claimed that Mothers version of events was less than truthful, and that she and Father had thwarted his numerous attempts to be involved in the twins lives and to hold them out as his own children. He also submitted declarations from his wife and parents, “expressing their desire to help raise the children.” Mother then moved to strike most of the other mans declaration and response.

Trial Court subsequently found that although the other man had held the twins out as his own, he failed to receive them into his home; that he was not entitled to a finding of “constructive receipt,” and that he could not qualify as a presumed father under California Family Code Section 7611(d). Relying on the case of Dawn D. (1998) 17 Cal.4th 932 [biological connection without any personal relationship with child does not give rise to protected liberty interest], Trial Court granted Mothers motion to quash and ordered the other mans petition dismissed.

Claiming, among other things, that California Family Code Section 7611 and Section 7612(b) are unconstitutional as applied in this case, the other man appealed the Trial Courts decision. Now, a California Appellate Court has ruled that (1) Father qualified as the twins presumed father under both California Family Code Section 7611(a) [child born during marriage] and (d) [man who receives child into his home and openly holds child out as his]; (2) protecting family integrity and the child’s well being are more important than biological tie; (3) the other man lacked the standing to bring a paternity action because he never tried to or actually married Mother, he did not receive the twins into his home, and cannot qualify as the twins presumed father; (4) Dawn D. defeats the other mans constitutional due process challenge (in utero relationship with the twins does not count as necessary personal relationship) and is not distinguishable; (5) the other man waived equal protection challenge by failing to raise it at trial (and the challenge is not supported by sufficient authority); and (6) the other mans equal protection challenge to California Family Code Section 7612(a) fails for lack of standing.

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