A little while back I wrote about a Michigan case involving the marital presumption. (Briefly stated, the marital presumption means that when a married woman gives birth to a child her spouse (and these days that can mean her wife) is presumed to be the legal parent of the child. That’s enough for now (you can read up on it in the earlier post). I’ll just also note that 1) all states have some form of the marital presumption and 2) it’s a presumption about LEGAL parentage–who is the legal parent of the child.)
As I’ve said, different states have different versions of the presumption. It can be easier or harder to rebut, depending on where you are, for example. MI, we now know, has a version that allows a husband to invoke it even if his (ex-)wife doesn’t want him to. This means he can claim legal parentage of a child that is genetically related to his wife and another man. There’s also a fairly recent case from CA that shows a different variation–and that’s what I want to write about here.
The CA court changed the names but the facts are pretty simple. Victor and Mary were, as the court puts it, romantically involved. Mary became pregnant. About a month before the baby (Donald) was born, they split up and Mary married Roger. Everyone knew that Roger was not Donald’s genetic father, but Mary and Roger took Donald into their home and have raised him as their child. Victor has never met Donald. His attempts to do so were thwarted by Mary. Victor wants a court to declare that he is Donald’s legal father.
Now you can see that this is quite a different set of facts from the MI case. Here the husband and wife stand (Mary and Roger) stand together against the genetic father. (I’ll just assume that is what Victor is. It seems very likely indeed.)
The initial question the court here confronted was whether Victor has a right to a hearing. (As to what will happen at the hearing….more shortly.) In other words, does Victor have enough of a legal interest here to be entitled to be heard in court.
From the court’s point of view, the critical fact is that Mary wasn’t married when she got pregnant. If she had been, it’s pretty clear that Victor would lose. The idea (as expressed by the court) is that if a man has an affair with a married woman, he takes the risk that any child resulting it will be raised within the marriage (and not by him). But if she isn’t married at the time of the affair, he doesn’t assume that risk.
Victor didn’t have an affair with a married woman, so Victor isn’t defeated by the marital presumption at this first stage. But he still has a long way to go and the presumption may still prevail.
What Victor has gained is the right to try to show that he, like Roger, is a “presumed father.” (There are different ways to get to be a presumed father. Roger can use the marital presumption, which of course Victor cannot use.) To get into the “presumed father” category Victor must show that he is genetically related to Donald (which I assume he can do) and, since he cannot show that he actually received the child into his home, he must show
that despite his best efforts he was prevented by Mary from doing so and that he has nonetheless “openly [held] out the child as his natural child” and attempted to assume the obligations of parenthood
If he can do that (and I’m not quite sure what it means to show that he held the child out in these circumstances), then he, too is a presumed father.
That would mean that Donald would have two presumed fathers–Victor and Roger. At that point it would be up to a court to choose between the two men. If you read through the opinion you’ll see that this determination is to be made with the specific facts of the case in mind–not as a general ruling about who wins in this sort of case. The court apparently is supposed to weigh all the relevant factors from both presumptions (and here, too, I’m not sure what that means.) But perhaps most importantly,
“[T]he trial court must in the end make a determination which gives the greatest weight to [the child’s] well-being.”
Further, the opinion mentions considering each presumed father’s role in the life of the child. Given that Donald has always lived with Roger and has never even met Victor, it’s a bit hard for me to see how Victor could prevail here. That’s especially true as Mary (who is unquestionably a legal parent) and Roger are apparently happily married. That means the court will choose between Roger as father (in which case Donald lives in this nice marital family) and Victor as father (in which case Donald lives between two households, in one of which he has no existing emotional/psychological relationship.)
So what does all this tell us about the marital presumption in CA? It think it tells us that it is still pretty powerful where it is invoked by a married couple in order to ward off an outsider. It cannot be defeated by simple invocation of genetics.