Other Cases Affecting Children

Brian C. v. Ginger K. (2000) 77 Cal. App.4th 1198 [ 92 Cal.Rptr.2d 294]. Court of Appeal, Fourth District, Division 3.

The trial court, in this paternity action, granted the mother’s summary judgment motion. While co-habiting with her husband, the mother had an affair and became pregnant by a different man. Shortly thereafter, the mother separated from her husband and moved in with the other man. Their child was born seven months later. The putative father was present at the birth, and his name appeared on the birth certificate and baptismal records. The mother, putative father and child lived together as a family for a little over a year. The mother and putative father broke up and the mother and child moved out. The putative father continued to see the child regularly. When the mother reconciled with her husband, she cut off all contact between the putative father and the child. The putative father filed a paternity action. At the hearing, the trial court granted the mother’s motion for summary judgment, based on its finding that the mother and her husband were co-habiting at the time of conception, and the husband was neither impotent nor sterile. Under Family Code section 7540, the child was conclusively presumed to be a child of the marriage. The putative father appealed.

The Court of Appeal reversed the decision of the trial court, holding that the putative father had constitutionally protected liberty interest in the continuation of his parental relationship with the child. The appellate court discussed the evolution of essential paternity cases. Following Stanley v. Illinois (1972) 405 U.S. 645, 92 S.Ct. 1208 (in which the US Supreme Court found that the due process clause of the 14th Amendment to the Constitution places some limits on the operation of states’ paternity laws), Lisa R. (1975) 13 Cal.3d 636, 119 Cal.Rptr. 475 and Melissa G. (1989) 213 Cal.App.2d 1082, 261 Cal.Rptr. 894, the Court of Appeal held that the conclusive presumption could not be constitutionally applied in this case because of the relationship between the putative father and the child that had already been formed, and was only interrupted by the mother returning to her husband and refusing the putative father contact with the child. Before the mother returned to her husband, the relationship between the child, the mother, and the putative father resembled a traditional nuclear family.

The Court of Appeal also held that the putative father had statutory standing. According to Family Code section 7611(d), a man is the presumed father if he receives a child into his home and acknowledges the child as his own, which the putative father in this case had clearly done. Under Family Code section 7630(b), any interested party may bring an action to determine the existence or nonexistence of a father and child relationship presumed under section 7611(d).

Although the husband came within two statutory presumptions of paternity, the putative father also came within section 7611(d) statutory presumption, and thus he had standing.