FAMILY LAW ARTICLES
Who’s the Daddy? Part 5.
A man unrelated by blood or marriage to a child can assert a claim of paternity to that child under certain circumstances.
In Family Code Section 7611(d) we find a mechanism by which someone who is not related to the child either by marriage or biology can become an adjudicated parent of the child – usually a father. Yes, that is what I just said: someone with no biological or marital claim to a child can become that child’s legal father.
The most common scenario:
A woman gives birth to a child. The child’s dad doesn’t stick around; he disappears from the child’s life. She meets someone new; she and the new guy move in together, with the baby. The child starts calling him “Daddy” and the new guy starts calling the child “son.” This goes on for a while, then the adults break up… And “Daddy” files a Petition to Establish Parental Relationship on the grounds that he is a 7611(d) father, because he doesn’t want to be excluded from the child’s life.
The relevant Family Code section reads as follows:
7611. A person is presumed to be the natural parent of a child if… d) The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.
This is based entirely on the child’s point of view and gives very little consideration to the wishes of the child’s mother or biological father. In this type of scenario, the person the child thinks is “Daddy,” has been allowed to call “Daddy,” and has formed a parent-child bond with “Daddy,” is going to be named this child’s legal father even over – perhaps especially over – the objections of the child’s mother, who permitted the child to form this relationship with the new man in her life. Even the absentee biological father, if he opposes this action, is unlikely to become the child’s adjudicated father.
Family Code section 7611(d) applies to children conceived by assisted reproductive techniques (ART).
Many women have conceived children via in vitro fertilization, artificial insemination, or other ART, believing that they are safe from any claim the biological father may make to the child. And that’s true; as a matter of law in California, the donor of biological matter cannot assert a biological claim to parentage of the child so long as certain preconditions are met (see Who’s the Daddy? Part 4 for those conditions). But – and this is important! – that does not preclude a legal claim to parentage of the child by the donor or some other male.
If the mother allows the donor, or any other partner, to move in with her, form a parent-child relationship with the child, and hold that child out as his own, then the new partner, whether male or female, can petition the courts to be named the child’s “presumed” father under Family Code section 7611(d).
We at Hartley Lamas Et Al have seen Family Code section 7611(d) used to accomplish wonderful things, keeping the only daddies a couple children had ever known in their lives. Those cases were incredibly rewarding.
We have also seen it used to undo all the planning a woman did in conceiving her child through ART, to have a child subject only to her parental authority – and the Court more or less blamed the woman, for allowing the child to develop the parent-child relationship with the donor. That was a painful case, because she didn’t know this was possible.
If you have a friend considering the use of ART to conceive a child, please have her read this post. Every woman considering ART should know the full implications of Family Code section 7611(d).
