The Presumptive Father Doctrine Under Family Code Section 7611(d): Where Behavior May Trump DNA
Who is a “parent” in the eyes of California law? Is this title a result of behavior? Is it a matter of biology? Or is it a combination of the two? What is required to assert one’s rights as a parent?
In California, parental rights and responsibilities are most closely tied with one’s DNA. In other words, a person’s biological make-up typically determines whether or not he or she is deemed a “parent.” This is especially true when there is no marital relationship to establish a presumption of parentage (the Family Code provides that children born during a marriage between two parties are presumed to be the children of that man and woman).
When two parties are unmarried, and have shared a sexual relationship that may or may not have resulted in children, and there is no Judgment of Paternity in existence, at least one party will typically insist on a DNA test to prove (or disprove) that a party is a biological parent of the minor child(ren) at issue. This process is somewhat expensive, costing in the neighborhood of $500.00 to $1,000.00 for testing of three parties (mother, child, and presumed father). The results from this analysis are helpful to the court and the parties, but not necessarily conclusive. They can provide closure for some parties who are not interested in accepting the responsibilities of parenting, but may also disappoint a party who had hoped to enjoy various parental rights.Thankfully, the courts have recognized that biology may only be a part of the overall analysis in determining parental rights. Within the Family Code, there is a specific provision one can use to bolster a non-biological parentage claim. The language can be found in Section 7611(d), within a Chapter of the Family Code entitled “Parent and Child Relationship.” The applicable section states that “A man is presumed to be the natural father of a child if he meets the conditions provided…He receives the child into his home and openly holds out the child as his natural child.”
Often times, there may be a competing presumed father claim. If you are a non-biological father attempting to be named the natural father, you may be forced to contend with a biological father’s claim. If the court has two separate and distinct claims of fatherhood to resolve, it must settle on one. In other words, there cannot be two natural fathers. In such a case, the court must weigh the competing presumptions, and the presumption that is founded on the weightier considerations of policy and logic will control. In reality then, the “natural parent” status may have little to do with nature.
Written by Kayla Horacek
