By Rob Lafer, Chief Legal Counsel, San Diego County DCSS
No, it’s not the theme for a new sitcom. A recent appellate case highlights the relatively new California law (Family Code section 7612 subdivision (c)), which allows a court to determine that a child has more than two parents.
In the case of C.A. v. C.P. “(2018) 29 Cal.App.5th 27, a man (plaintiff) wanted to be legally recognized as the child’s father, so he filed an action in court against the child’s mother and the mother’s husband. The mother in this case had conceived a child with a coworker (plaintiff) while still married to her husband. The child’s mother (wife of co-defendant) had led plaintiff to believe she was separated from her husband (co-defendant) at the time. Thereafter, the wife and husband allowed the plaintiff to act in a parenting type role for three years. Plaintiff was involved in child’s medical evaluations and treatment, openly held her out to be his daughter, received the child into his home, exercised regular visitation, and voluntarily paid child support until he was no longer allowed to see the child. The child bonded with the plaintiff and his relatives.
The trial court found that both the plaintiff and the husband were presumed fathers. After weighing both presumptions regarding the two possible fathers, the court found it was appropriate to recognize both as fathers and thereby determined there to be three parents. The key finding was the child would suffer detriment if the court separated her from one of her three parents.
Generally, where there is an intact marriage, as was the case here, the court will not allow someone to disrupt that relationship by impinging upon their parental rights. The husband had argued that only he could be the father based upon the conclusive presumption under Family Code section 7540. The court disagreed with the husband and essentially ruled that the “conclusive” presumption is not an “exclusive” presumption. It distinguished this case from others where a married couple consistently excluded a biological father from participating in the child’s life. It went on to say that the married couple could have prevented the plaintiff from being a legal father by excluding him from the child’s life from birth.
It is important to note that the court found this to be a “rare” case and that each of the three parents should be legally recognized as such to prevent detriment to the child. A court should not determine that a child has more than two parents unless it first finds that the child has an existing bonded relationship with another potential parent, the termination of which would cause detriment to the child.
For more information about this case, please contact Rob Lafer at firstname.lastname@example.org.