Other Cases Affecting Children

Adoption of Alexander M. (Dec. 10, 2001) 94 Cal.App.4th 430 [114 Cal.Rptr.2d 218]. Court of Appeal, Fourth District, Division 3.

A married woman engaged in a brief sexual relationship with a man and they conceived a child. Although she had filed a petition to dissolve her marriage years before the child's conception, she had not obtained a final dissolution. When the child was born, the mother immediately relinquished the child for adoption. The adoptive parents served the man with notice of alleged paternity and adoption and filed a petition for adoption. Two weeks later, the prospective adoptive parents filed a petition to terminate the man's parental rights and to determine the necessity of his consent to the adoption. The man filed a petition to establish paternity and, if he was the father, then to obtain custody or visitation. Genetic testing established that the man was the biological father of the child. The prospective adoptive parents' petition and the biological father's petition were consolidated and heard in probate court. The judicial officer determined that because the mother was married her husband was the presumed father of the child, and that the case was governed under Family Code section 7631. The court vacated the consolidation order, suspended the consent petition and adoption proceedings, and transferred the paternity petition to the family court. The family court entered a judgment of paternity and denied the biological father's request for visitation without prejudice to his request in the adoption matter, which was pending but temporarily suspended. The probate court moved to set a trial date for the consent petition, and the biological father argued that Family Code section 7631 prohibited that action until the paternity petition was final and custody and visitation were adjudicated. The probate court judge agreed, denied the prospective adoption parents' motion, and assigned himself the family law issues of custody and visitation. The biological father appealed the family law judge's order that failed to adjudicate custody and visitation, claiming it violated section 7631, which requires the finality of paternity actions prior to initiation of adoptive proceedings. The prospective adoptive parents sought mandamus relief from the probate court's order that custody and visitation be determined before the court would consider their consent petition.

The Court of Appeal dismissed the biological father's appeal from the family law court as moot. The appellate court held that the trial court must hold a hearing on the prospective adoptive parents' petition to terminate the biological father's rights under section 7664(b), first taking evidence on whether the biological father's consent to the adoption is required. A biological father who is not a presumed father can petition the court to establish his legal status as the child's father, but the petition of the mother or prospective adoptive parents to terminate his parental rights will be granted unless he proves that it is in the child's best interest that the adoption not proceed. (See Fam. Code, §§ 7630, 7631, 7662, and 7664 and Adoption of Kelsey S. (1992 1 Cal.4th 816.) The biological father argued that now that he had been determined to be the natural father, he was entitled to have custody and visitation determined under the "detriment-to-the-child" standard under Family Code section 3401 rather than the "best-interest standard" under section 7664(b). The appellate court determined that the biological father must prove that he has demonstrated full commitment to the child in order to be entitled to the benefit of the detriment-to-the-child standard" under section 3401; and if he cannot, he must prove that retention of his parental rights, rather than adoption, is in the child's best interest.