Parentage in CA–Marriage Trumps DNA (Again)

I’ve written with some regularity about the marital presumption.  This is the idea–ancient in origin–that when a married woman gives birth to a child her husband is presumed to be the father of the child.   In its strongest form, this means that even with DNA tests showing that a different man is the source of the sperm, the law labels the husband as the legal father of the child.

You can browse around the blog find various discussions of this rule.  For instance it was recently rejected in Kentucky though it had earlier been affirmed in California.   It’s application to lesbian couples is also interesting.  Since it is parentage not based on biology but rather on legal relationship with the other parent, it ought to (and sometimes does) apply to the wife or domestic partner of a woman who gives birth.  

In any event, there’s a new California case that reaffirms California law, but makes some interesting points along the way.    Here’s the basic story:  Mary has been married to Scott since June, 2001.   She gave birth to twins in May, 2009.   Neil is another man who happens to be married to some other (unnamed) woman.   (This becomes relevant shortly.  I’m not just engaging in character assasination.)   Between May and October, 2008 Mary and Neil were in Bahrain and they had an affair.   (I think this much everyone agrees on.)

Neil says that from October, 2008 to February, 2009 he took Mary to doctor visits and “generally cared for her and spoke, read and sang to the twins in utero.”  Mary may or may not agree with that but it seems fairly clear that in February, 2009 Mary returned to San Diego and reunited with Scott.

When the twins were born Scott accepted the twins into his home.    Scott’s name was placed on the birth certificates and, according to Mary, “Scott was a ‘stay-at-home’ dad and the twins primary caregiver.”

The legal action began when the twins were ten-months old and Neil filed a petition seeking to establish paternity.   Neil wanted DNA tests done in order to establish that he was genetically related to the twins.  As it turns out, he doesn’t get the DNA tests (or anything else) because it wouldn’t matter what they showed–Scott and Mary are and were married and wish to raise the children together and so, under California law, Scott is the legal father of the children.  Since Scott is the legal father, Neil cannot be.

As I mentioned, the law in California was fairly clear on this point before this case so Neil had to try to say his case was somehow different from those that came before.    He tried at least three different arguments, each of which I find kind of interesting.

Before noting them, however, it’s worth articulating the rationale the California court offers for the result it reaches.  Its primary considerations are the integrity of the family (that would be the married family headed by Mary and Scott) and the protection of the child’s well-being.   This means that Neil’s only chance is to show a social (as opposed to biological) relationship with the children.

In this context Neil argued that he had a social relationship with the children, by virtue of having sung to/talked to them while they were in utero.   Now that’s an interesting point to me because I’ve been trying to figure out whether I think a person other than the woman who is pregnant can have a meaningful social relationship with a child in utero.   This matters to me because I am generally supportive of the idea of de facto or functional parentage.   In this case, the court rejected Neil’s argument on this point, saying:

Neil’s proposed “prenatal relationship” theory views the relationship from the alleged father’s perspective, not the child’s, and thus does not advance the policy considerations recognizing the value to the child of an established parent-child relationship.

This is the first time I’ve seen a court consider this argument and so it is worth flagging. 

I think all I have time/space for here just now is to flag the other arguments Neil made.   He argued that Mary prevented him from forming any social relationship with the twins and shouldn’t be able to benefit from that conduct.   And he made a slightly perverse argument that since he was also married, his marital family ought to be as good a choice as Mary’s marital family.   I’ll come back to both of these tomorrow.  






5 responses to “Parentage in CA–Marriage Trumps DNA (Again)

  1. The woman and her husband are pure evil and so is that antiquated backward law in my own lame hillbilly state. On family scholars someone said that they expected me to say women that mate with anonymous donors are evil and I was surprised because I’d never say such a thing – they are selfish and shortsighted but not malevolent. This is just plain sick. How dare that couple jip the kids out of THEIR FAMILY. It’s not the Mom’s to take away and how on earth do they expect the step family to replace the children’s own family that’s fighting for them no less? Everyone knows I think that. It does not make for good conversation anymore.

    I want to talk about voluntary declaration of paternity and how it is exactly the same as marital presumption of paternity because in the end the state simply presumes paternity based upon a jointly executed document between a woman that gives birth and someone else that may or may not be able to pass a paternity test.

    Imagine that a woman and a friend (male or female) could jointly execute the voluntary declaration of paternity despite the fact that the friend knows he or she is not really the child’s father. Again we have the same situation where the woman that gives birth has way too much power to be judge jury and executioner deciding that she does not like the real father and can just fabricate her own twisted reality where her friend pretends to be the other parent all to feed Mom’s enormous super ego. Sheesh. Both those laws are horribly unfair to the child.

    • You know, saying they are evil is pretty strong language, especially when we do not know very much of anything about the people involved. I find your willingness to offer blanket condemnation of a person (since saying they are evil is a judgment of the whole person) based on a single act we don’t know much about to be extreme and I often just want to reject it as such. This, however, doesn’t really advance the discussion of whether the marital presumption is a good idea–as a matter of law.

      Situtations like this are difficult, but it’s important to consider the choices. One possiblity would be to have the child live part time with both families. This might be a bad choice for many children–especially if the two families live far away. Another is to pick one family and assign the child to that familiy. That’s basically what the law does–and it picks the mother’s family over the father’s. I’m not saying that if you think about it this way then the rightness of the outcome becomes obvious, but it might help us think about it. In any event, the child’s family–here the mother and husband–can be honest about the child’s origins and can allow the child contact with the other man if they want to.

      FWIW, VAPs don’t work quite as you say. They are meant to obviate the need for genetic testing and so establish that that the man in question is genetically related to the child. If the parties know the man is not the genetic parent, they cannot properly sign the form. It’s fraud and is a basis for invalidating the VAP.

  2. Ok help me out here; The state has to presume paternity to be true before it will recognize a man as the father of a particular child. That is to say they only certify birth records if they are reasonably convinced the man named as father really is the father and the child is his genetic offspring.

    If the state finds out that it recognized a man as father of a child based on a false presumption of paternity then it is my contention the State should correct mistakes of fact on official records related to parentage of the child in question. You are the one that taught me that false presumptions of paternity are rarely corrected on state records due to the passage of time and performance of care giving duties that are required when paternity does exist. In essence the state will end up playing along with the fraudulent misrepresentation if enough time has passed.

    Are you suggesting that the state will correct an erroneous assignment of fatherhood based on dna evidence for men who signed VAPs but not husbands? I think dna evidence should trump erroneous presumptions of paternity regardless of how the false presumption came about and regardless of the passage of time because paternity is a biological fact not dictated granted not to be denied by the State because its outside their sphere of influence. Custody and rights and legal obligations based on those biological facts is within the states authority to dictate so they should stick to that. marital presumption of paternity has to hinge just as much on biological accuracy as the vap because paternity is still a medical term that defines a biological relationship. All these laws for marital presumption make it look like the state grants people their biological relationships

    The legal and medical definitions of paternity look consistent to me

    Medical Dictionary
    paternity pa·ter·ni·ty (pə-tûr’nĭ-tē)
    Function: noun
    The state of being a father; fatherhood.
    Descent on a father’s side; paternal descent.
    The American Heritage® Stedman’s Medical Dictionary Copyright © 2002, 2001, 1995 by Houghton Mifflin Company.
    Legal Dictionary
    Main Entry: pa·ter·ni·ty
    Pronunciation: p&-‘t&r-n&-tE
    Function: noun
    1 : the quality or state of being a father
    2 : origin or descent from a father
    Merriam-Webster’s Dictionary of Law, © 1996

    • I will try to help, but I am not sure I can. I think a VAP is supposed to obviate the need for genetic testing. You are only supposed to fill out a VAP if you believe you are genetically related to the child in question. Thus, if you know you are not, a VAP is not for you. (A female partner of a woman who gives birth cannot fill one out.) You are not making an assertion of legal parentage, but rather a factual assertion. If you lie (that is, if you assert something you know is not true) then the VAP is subject to attack. VAPs came into being because we are eager to assign legal fathers to children born to unmarried women and the primary way legal fathers are assigned to unmarried women is genetics. But genetics is not and has not been the only way. There’s also holding out–if a man takes a child into his home for a period of time and presents the child to the world as his child, then the man is presumed to be the father of the child.

      In general, I think VAPs were designed with situations in mind where there were too few potential candidates rather than too many. Thus cases where VAPs are used offensively to exclude other people who wish to claim legal fatherhood are unusual and perhaps reveal places where the system is not so well thought out.

      VAPs are for unmarried parents because if you are married the marital presumption does much the same work. Thus, at least in some states, DNA is irrelevant for married men. California is among those states. But other states prefer DNA–see that Kentucky opinion from over the summer.

  3. Hi people – I just found this blog and, boy, do I have a lot to say about this story. I have the inside knowledge of this case (Neil S. vs. Mary L.) as Neil S. is my son and I am the paternal grandmother to the twins born to Mary L. This is a true case of paternity fraud (along with perjury in a court of law), and Mary and her husband Scott have been lying in all of their court documents regarding the true paternity of twin daughters born to Mary and Neil. Scott is not the biological father, Neil is. Both Mary and Scott know that Neil is the biological father, and they have stolen his children from him. Neil has gone through a huge emotional turmoil over what has been done to him, and has spent over $40,000 in attorney fees in trying to be a father to his daughters. He has never seen his daughters once yet, and I have even asked Mary (via email) for pictures of our twin granddaughters, with no response. Yes, she and her husband are evil in their actions towards Neil and us, as the girls’ paternal family. Their actions are criminal in my mind. This is so wrong, and the courts are allowing this to occur because of Calif’s marital presumption law giving the husband more rights to the children than Neil. This is appalling. And the courts are allowing the girls to have a birth certificate that states that her husband is the biological father. Do the courts not care that such an important document be the truth? Neil presented 31 exhibits of evidence to the court to help prove his case, but all were ignored in the lower court because the court ruled that Neil had no standing because he was unable to take the children into his home. CA family law statute 7611(d). And therefore, the court will not order DNA tests.
    But Neil was prevented from taking the children into his home by Mary and her husband, so where does that leave Neil? Her husband is the presumed father because he is married to her, and therefore has more rights than Neil? And the mother has the right to deny Neil access to his children? On what grounds? In divorce cases the mother doesn’t have the right to deny the father access to his children. This is RIDICULOUS! Neil appealed his case to the State Supreme Court, but they denied his Petition for Review. So now he’s looking to go the U.S. courts, but he doesn’t have any money left to hire an attorney to represent him in federal court (& we don’t have any either). He probably won’t win in the federal courts either. Does a biological father not married to the mother have any rights in this country? The marital presumption is old school thinking, and is gender-biased. Neil should have the same rights as the mother to participate in the upbringing of his children (equal protection, right?). He is being treated as if he doesn’t exist. Shame on the legal system of this state and country to not help a loving father be a part of his children’s lives, when he so wants to be. He is married also; doesn’t that give him the same rights as the mother? I am very offended at this inequitable judicial treatment towards my son, and many other people are also. Our son just retired from the US Navy with 20 years of honorable service and we are very proud of him. He is a good man and deserves better treatment than this. We are a good, law-abiding family and are not an “unfit” family in any way. Nor is Neil an unfit parent. His daughters deserve to know and love Neil also. If his daughters could speak, they would say that they want a birth certificate that is the truth and they would also say that they want to know and love their biological father, as much as he wants to know and love them. These court decisions (federally and in the state of Calif) shunning putative fathers’ rights are totally wrong, wrong, wrong, and my son’s case proves it! Neil’s rights to parent his children (which fall under due process and equal protection rights written in the US constitution (and CA constitution) are being totally ignored . What can be done about this? Does anyone have any ideas out there that might help?

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