California Family Code Section 7611(D) - Presumption of Parentage

The Family Code section 7611(d) parentage presumption does not arise until certain evidentiary standards are met, and even when the presumption is found to exist, it is subject to rebuttal in appropriate cases. A person who claims entitlement to presumed parent status has the burden of establishing by a preponderance of the evidence the facts supporting the entitlement. (S.Y., supra, 201 Cal.App.4th at p. 1031; In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653 56 Cal. Rptr. 2d 524.) When determining whether the person has met the statutory requirements of receiving the child into his or her home and openly holding the child out as his or her own, the court may consider a wide variety of factors, including the person's provision of physical and/or financial support for the child, efforts to place the person's name on the birth certificate, efforts to seek legal custody, and the breadth and unequivocal nature of the person's acknowledgement of the child as his or her own. (See S.Y., supra, at p. 1034, fn. 10.) No single factor is determinative; rather, the court may consider all the circumstances when deciding whether the person demonstrated a parental relationship by holding out the child as his or her own and assuming responsibility for the child by receiving the child into his or her home. (See ibid.; Charisma R., supra, 175 Cal.App.4th at p. 376; see also Nicholas H., supra, 28 Cal.4th at pp. 60-61, fn. 2.) The parentage presumption "is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence." ( 7612, subd. (a).) This rebuttal provision "'seeks to protect presumptions of parental status, once they have arisen, from being set aside except upon clear and convincing evidence and only in an appropriate case.'" (Nicholas H., supra, 28 Cal.4th at p. 66.) Thus, a party disputing a presumed parent finding has the burden to rebut the presumption by clear and convincing evidence. (S.Y., supra, 201 Cal.App.4th at p. 1036.) Consistent with the principle that presumed parent status may be afforded to a person who is not the biological parent, a lack of biological parentage does not alone require that the presumption be deemed rebutted. (Nicholas H., supra, 28 Cal.4th at pp. 58-59, 62-63; Elisa B., supra, 37 Cal.4th at pp. 122, 125; In re Jesusa V. (2004) 32 Cal.4th 588, 603-604, 606-607 10 Cal. Rptr. 3d 205, 85 P.3d 2.) Rather, the court should evaluate all the circumstances to see if it is fitting for the presumption to be rebutted in the particular case. (In re Jesusa V., supra, at p. 606; In re T.R. (2005) 132 Cal. App. 4th 1202, 1212 34 Cal. Rptr. 3d 215.) Relevant to the application of the section 7611(d) parentage presumption in cases where it will permit the child to have two parents, the courts have recognized "the value of having two parents, rather than one, as a source of both emotional and financial support ... ." (Elisa B., supra, 37 Cal.4th at p. 123; see L.M. v. M.G. (2012) 208 Cal.App.4th 133, 145-147 145 Cal. Rptr. 3d 97 (L.M.); Charisma R., supra, 175 Cal.App.4th at p. 374; see also Kristine H. v. Lisa R. (2005) 37 Cal.4th 156, 166 33 Cal. Rptr. 3d 81, 117 P.3d 690 court's decision guided by "public policy favoring that a child have two parents rather than one".) However, the trial court's consideration of the two-parent policy arises only after there is an evidentiary showing that the presumed parent statutory requirements have been met; that is, the two-parent policy should not be used to establish the presumption but rather may be considered on the issue of rebuttal of the presumption. (In re D.M. (2012) 210 Cal. App. 4th 541, 554-555 148 Cal. Rptr. 3d 349.) As explained in D.M., "The interest in providing a child with two parents is not a factor unless the evidence supports the presumption of parenthood. We recognize that one important policy concern is ensuring that children have two parents. Here, D.M.'s counsel supported the request for presumed father status for that reason. But reliance upon the policy favoring two parents is misplaced if it comes before an accurate finding of parenthood." (Id. at p. 554.) Thus, case authority reflects that judicial application of the section 7611(d) parentage presumption and the two-parent policy does not seek to impose a two-parent choice to the detriment of a single-parent choice, but rather seeks to further a two-parent familial arrangement that has already been developed in the parenting of the child. (See Jason P. v. Danielle S. (2014) 226 Cal.App.4th 167, 178 171 Cal. Rptr. 3d 789 recognizing mother's "right to be the sole parent" of child conceived through use of sperm donor, but holding that sperm donor may seek to establish presumed parentage if mother allows relationship between child and sperm donor to "rise to the level of presumed parent and child".)