Legal Question in Family Law in California
Parental Rights
My former partner and I were never officially married, although we had a religious ceremony and held ourselves out to be married. Fifteen years later, she had a child. The child was born in my home, identified by me as my daughter, and lived with me for her first two years. She is now four. She calls me "daddy." I see her on a regular basis, including overnights. I have paid "child support" from the time that we separated. I have an insurance form signed by her mother listing her as my daughter. I believe that I qualify as a "presumed father" under the code.
However, her mother did not name me on the birth certificate and has told the state that she does not know who the father is. There is at least an 80 percent chance that I am not the biological father -- the person who is most likely the natural father did not attempt to assert paternity and has dropped completely out of the picture.
I assume any legal presumption could be rebutted by blood tests if I ever brought a legal action to establish parental rights -- an issue that has been quite tense between the mother and myself. Do I have any legal standing, or would the mother be subject to any kind of estoppel?
3 Answers from Attorneys
Re: Parental Rights
You are a "presumed" father under Family Code Section 7611(d). You have
standing to bring a paternity action.
A judge could decide paternity in light of the blood tests, which may exclude you. However,
the concept of estoppel is well recognized, and there is a good chance that, especially in the
absence of any interest in fulfilling parental responsibilities by the "natural" father, the end result
would be a judgment that you are the father. Estoppel would bind you, and the mother, but would not bind
the child if the child for some reason brought her own paternity action.
Jed Somit
Jed Somit, Attorney at Law
1440 Broadway - Suite 910
Re: Parental Rights
I'll assume the ceremony and living together for 15 years occured in CA, which does not recognize common law marriage.
There are various cases that would find the mother estopped to deny your relationship with the child. That does not mean you necessarily establish paternity (eg: Social Security would not recognize her as your daughter for benefit purposes). See the Clevenger case and In re Philip B. Some recent cases have granted rights to co-habs, even where it was a gay relationship (2 women, one of whom either adopted or had art. insem.). You should file an action Complaint to Establish Parental Relationship and include a request that your relationship be recognized even if testing proves negative. Or you might just leave it the way it is, assuming you are able to see your daughter.
Matthew Kremer
Law Offices of Matthew M. Kremer
9665 Chesapeake Drive, Suite 310
Re: Parental Rights
Your have posed a very interesting question, but did not provide enough information. The following information is needed to fully analyze the question.
1. Where was this religious ceremeony performed?
2. The religion under which the ceremony was performed?
3. Was this religious ceremony a valid marriage at the location the ceremony was performed?
For example a religious ceremony performed on a Indian Reservation, and the ceremony is recogized by the Tribe.
You should review these issues and then you can analyze the law and determine whether or not there is a valid marriage under California law.
Lyle Johnson
Lyle W. Johnson Attorney at Law
152 N. Third Street, Suite 510
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