In California, the child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the marriage. The presumption does not apply if the court determines that the husband of the woman who gave birth was impotent or sterile at the time of conception and that the child was not conceived through assisted reproduction. Specifically, California law finds that someone is presumed to be the natural parent if any of the following are true:

1. 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, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.

2. Before the child’s birth, the presumed parent and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:

   A. If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.

   B. If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.

3. After the child’s birth, the presumed parent and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:

   A. With his or her consent, the presumed parent is named as the child’s parent on the child’s birth certificate.

   B. The presumed parent is obligated to support the child under a written voluntary promise or by court order.

4. The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.
5.  If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child’s father in a declaration under penalty of perjury.
6. The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied.

Establishing parentage can be a tricky issue with many twists and turns brought on by the complexities of human life and the relationships we have. For example, what happens when a married woman has a child and someone other than her Husband thinks he is the Father? What happens when both the alleged genetic father and the presumed father (Husband) assert a parental relationship and a bond with the child? The hypothetical situations can be listed ad-nauseam and this section will only touch on the surface of a complicated and evolving area of law. 

If it turns out that the Husband is not the genetic father, some of the methods in which that issue of parentage can be resolved by an action to challenge the parentage of the spouse who is a presumed parent, filed not later than two years from the child’s date of birth, filed by (1) either spouse, or (2) anyone considered a presumed parent for any of the reasons listed above. When considering such an action, the Court will have to weigh the various claims of the presumed father and the person asserting a parental relationship. In weighing all the factors, the Court will have to make a decision that is in the best interest of the child. This can even include finding that the child has more than 2 parents. 

In the situation where the natural mother was not married, and there are no other applicable presumptions, an alleged parent can assert parental rights, not only through genetic testing, but also by proof that he or she promptly came forward and demonstrated a full commitment to parental responsibilities—emotional, financial, and otherwise—from the time the person knew or should have known of the existence of the child or the pregnancy. Courts must consider (among other things) the person’s conduct before and after the child’s birth, including whether he or she publicly acknowledged parentage, paid pregnancy and birth expenses commensurate with ability, and promptly took legal action to obtain custody. The relationship must be more than just casual, it must be someone who has entered into a familial relationship with the child; someone who has demonstrated an abiding commitment to the child and the child’s well-being. However in the event the party seeking to establish a parental relationship does not have a relationship with the child due to the actions of the child’s mother (or third party), that person is still permitted to assert parental rights and must demonstrate that the mother’s (or a third person’s) unilateral actions blocked the person from receiving the child into his or her home. 

Parentage cases can be very complicated and involve the demonstration of very specific evidence with an emphasis on being timely. If you need assistance with your Parentage case, contact an expert at Clemens | Warren, L.L.P. today.