Today’s Law Review analyzes an interesting case. The court has to decide whether an infant can have more than two parents, in this case three parents. You ask how can that be?
A Child (no names in the Opinion) was born in July 2012 to Wife, who was then and remains, married to Husband. Wife’s co-worker fathered the Child which was kept secret; however Co-worker acted as an alternative parent bonding with Child, even voluntarily paying child support.
In this Opinion, the trial court found the Child was bonded to all three parents which was “rare” as the court wrote.
WHO’S THE REAL PARENT?
The father/co-worker sued to establish he was the child’s biological father and entitled to be deemed a legal parent. That became the issue in this case.
Family Code section 7540 recites in part: “…the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.” Conclusive. As the Court of Appeal ultimately wrote, “there is no dispute that Husband is presumed to be at least a father of the child under section 7540.
However the Court went on: Plaintiff (co-worker/biological father) is also presumed to be a father, under section 7611(d) which provides that a person ‘is presumed to be the natural parent’ if the ‘presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.’”
As the Court wrote, “the question is whether the natural father can be deemed a third parent.”
The Court of Appeal analyzed the law: “Most children have two parents, but in rare cases, children have more than two people who are that child’s parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm.”
Family Law section 7612(c) provides: “In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child…a finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage.”
The Court of Appeal agreed with the trial court noting that Husband living with Wife, indeed, has a conclusive presumption of parentage, but not necessarily an exclusive presumption. Paragraph section 7612 allows for three parents.
As the Court wrote: Child “is fortunate, to have two devoted Fathers that care deeply for her, love her and are prepared to continue to play an active role in her life…the Child’s biological father is an important part of her life.” Indeed.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or www.portersimon.com.
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