In the event of a dispute over the identity of a natural father, a court may order blood tests to resolve the issue (Family Code §7551, §7554). The outcome of any case, however, is highly fact sensitive, and not all relationships will qualify for a court-ordered blood test (See Dawn D., v. Jerry K., 17 Cal.4th 932, 72 Cal.Rptr. 871 (1998)).

The current trend is for unmarried fathers to increasingly accept their roles as fathers. Now, in order for an unmarried father to have his name placed on the child’s birth certificate the father must sign a paternity declaration. In the past, the mother could decide what name went on the birth certificate. The name of the father on the birth certificate obligates the unmarried father to support the child, and allows the father the same rights as a father as if he were married to the mother. The true identity of the father is not always clear however. The legal process to identify the father will vary depending upon the type of relationship that exists with the mother.

Marital Relationships:

In marital relationships, the long-established rule that the child of a wife cohabiting with her husband is "conclusively" presumed to be child of the marriage is well recognized in California (Family Code §7540). In other words, a man who is not impotent or sterile, and who is married to the mother of a child is "conclusively" presumed to be the child’s father. This so-called "conclusive" presumption may be overcome by the use of blood tests provided an application for a court order for blood tests is made within 2 years of the child’s birth (Family Code §7541(b)). Unless the motion is timely made and blood tests prove otherwise, the conclusive presumption will apply even if it can be established that another man is the biological father (Susan H. v Jack S. 30 Cal.App.4th 1435, 37 Cal.Rptr.2d 120 (1994)). The alleged father must also be a "presumed father" (Family Code §7611). A court may only order blood tests with respect to a "presumed father" (Rodney F. v. Karen M. (61 Cal.App.4th 233, 71 Cal.Rptr.399 (2nd. Dist., Div. 6, 1998), cert. denied, 1998 Cal. Lexis 2514).

Although a recent appellate court decision allowed an alleged father to rebut this presumption by the use of blood tests after the two (2) year statute of limitations, the case is not citable, and is therefore not legal authority in California. Other cases, however have been chipping away at the so-called "conclusive" presumption, and the 2 year statute of limitations. In County of Orange v. Leslie B., 14 Cal.App.4th 976, 17 Cal.Rptr.2d 797 (4th Dist., 1993), in a marital dissolution proceeding, terminating a 2 year marriage, the former husband was not notified for 12 years that his ex-wife had given birth to a child just prior to the parties’ divorce having become final. In responding to a District Attorney paternity action, the ex-husband was allowed to rebut the "conclusive" presumption despite more than 2 years having passed since the birth of the child. The biological father was not permitted to use the "conclusive" presumption to avoid payment of child support to the child’s mother.

Non-Marital Relationships:

In non-marital relationships, California has a rebuttable presumption of paternity (Family Code §7611). The rebuttable presumption holds inter alia, that a man who receives a child into his home and openly holds the child out as his own is rebuttably presumed to be the child’s natural father (Family Code §7611(d)). The presumption may be overcome by the use of blood tests. If no contradictory blood tests are introduced into evidence at a paternity trial, the presumption will remain. (Comino v. Kelley 25 Cal.App.4th 678, 30 Cal.Rptr.2d 728 (1994)).

If a man fathers a child with a woman who is married to another man, the results can be devastating to the natural father. Under existing law, the husband of the mother is presumed to be the father. If the husband refuses to allow the natural father to assert parental rights, the natural father will be without recourse in the courts (Dawn D. v. Jerry K., 17 Cal.4th 932, 72 Cal.Rptr. 871. (1998). In Dawn D. the mother (Dawn D.) left her husband to live with a man (Jerry K.). Although at the time she began living with Jerry, Dawn intended to divorce her husband, she became pregnant with Jerry’s child about one month later, and then returned to her husband about three months after becoming pregnant. Despite Jerry’s attempts to assert his parental rights, the California applied Family Code §7611 and Family Code §7630 against the natural father. Jerry was not married to Dawn (§7611(a)) nor did he hold out the child as his own §7611(d). Despite the otherwise rebuttable presumptions, the court explained that the Family Code "restricts standing to challenge the presumption of a husband’s paternity to the child, the child’s natural mother, or a presumed father (Family Code §7630(a)." (Dawn D., supra, p. 937). The harsh result of the case was that the natural father would not be permitted to assert his parental rights, and could not compel Dawn and the child to submit to blood tests. The majority concluded that Jerry did not have a constitutionally protected liberty interest in establishing a parent-child relationship with the child.

Numerous courts have rejected due process challenges to the "conclusive" presumption of paternity. (see generally, Michael H. v. Gerald D. (1989) 491 U.S. 110, 109 S.Ct. 2333, 105 L. Ed. 2d 91; Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 216 Cal.Rptr. 748, 703 P.2d 88). Where the conclusive presumption applies, unless the biological father has established a parental relationship with the child, it has been held that the state’s interest in maintaining the stability of the family will overcome the biological father’s rights (Michael M. v. Giovanna F. (1992) 5 Cal.App.4th 1272, 1284, 7 Cal.Rptr.2d 460).

An almost identical fact situation is presented by Rodney F. v. Karen M. (61 Cal.App.4th 233, 71 Cal.Rptr.399 (2nd. Dist., Div. 6, 1998), cert. denied, 1998 Cal. Lexis 2514). In that case, despite blood tests establishing a 99.5 per cent probability of paternity for the biological father, the mother’s husband was deemed the father pursuant to the "conclusive" presumption of Family Code §7540. Even thought the biological father’s petition was apparently brought within the two year period of limitations, the biological father was held not to be a "presumed" father within the meaning of Family Code §7611, and "it was error for the trial court to order blood tests." (Rodney F., supra, 61 Cal.App.4th 233, 239).


Copyright © 1999 Roy A. Barry, all rights reserved.