Most family law litigants will never hear the term “presumed fathers” (also called presumed parents) during their divorce action, especially if you followed the traditional path of getting married prior to having children. In most cases, your family law attorney will determine whether presumed parentage is an issue without ever discussing it with you. An example would be helpful. Assuming you are seeking a divorce and you have children, during your initial interview with a family law attorney, you will be asked, “What was your date of marriage?” You will also be asked, “What day are your children’s dates of birth?”
These questions are fairly innocuous and should not come as much of a surprise to you. What you might not know is we are also trying to determine whether your children were born before or after you were married. If your answer to the questions above show that your child(ren) were born after you were married, presumed parentage is unlikely to be a major issue in your case so long as the other parent does not contest your parentage. (See Family Code 7611)
Presumed parentage is a rebuttable presumption affecting the burden of proof. The presumption can be overcome by a preponderance of the evidence in contested parentage cases. Put more simply, if a Parent A is asking the court to find they are the parent of a child, they are the parent who must prove that fact to a court. The reputable presumption for children born during a marriage flips that burden, meaning that Parent B (the contesting parent) must now prove that Parent A is not the child’s parent. In either case, this is usually resolved through a DNA test.
Now, imagine the following scenario, a child was born during the marriage, and for five years after that the father believed the child was his biologically. After the parties initiate a divorce, the mother tells father the child is not his child. In this case, the burden would be on Mother to prove Father was not the biological parent. Later, Father takes a DNA test and it is determined he is not the biological father of the child. What should happen now?
In such a case, Father can rely on Family Code §7611(a) which states, “The presumed parent and the child’s natural mother are or have been married to each other and the child is born during the marriage.”
Let’s change those facts a little and say that Mother and Father were only dating and living together, but were not married, when the child was born. In that case, Father could rely on Family Code §7611(d), which states a party is a presumed parent if, “parent receives the child into his or her home and openly holds out the child as his or her natural child.” Such a law makes sense too. If a child believes the father is his biological father, the father believes the child his biological child, and for 5 years both father and child developed a relationship and a bond, it would be hard to justify destroying that bond simply because they do not share the same DNA.
So you might be asking why establishing parentage is so important. One of the answers is contained in Family Code §7650, which states “knowledge of family medical history is often necessary for correct medical diagnosis and treatment. Additionally, knowing one’s father is important to a child’s development.”
Another reason for establishing paternity is that doing so is the first step towards a child support order, which in turn allows children equal access to benefits, health insurance, social security, retirement benefits, military benefits and inheritance.
Presumed parentage is a very complicated subject with many exceptions, requirements, and pitfalls. Moreover, as more parents engage in fertility treatments and surrogacy, this area of law is evolving at a rapid pace. The attorneys at Bickford Blado & Botros have the knowledge and experience to help navigate your case through the family courts.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding presumed parentage. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.