Focus On The Best Interest of The Child

The Fourth Apellate District’s decision in Craig L. v. Sandy S. (2004) DJDAR 1505(a), is the latest pronouncement from the California Courts of Appeal holding that when there are dueling and/or competing “presumptions” of parentage the courts should focus on the best interest of the child, as opposed to maintaining the integrity of a marriage.

Craig L. and Sandy S., both married to others, had an affair in the Spring of 2001. Sandy became pregnant during the affair, and gave birth to Jeffrey S. on February 11, 2002. Routine blood testing at the hospital revealed that Brian could not be Jeffrey’s father. Sandy ultimately confessed the affiar to her husband, Brian, and told him that only Craig could be Jeffrey’s biological father. Craig L. also confessed to his wife, Katherine L. that he had had an affair. Craig and Katherine agreed to participate as fully as possible in Jeffrey’s upbringing. Craig L. signed a child support agreement for payments to Sandy S. The agreement provided that Craig’s wife Katherine would take care of Jeffrey three to four days a week in their family home. The visitation later included one overnight stay each week, as the child got older. Craig further alleged that he held Jeffrey out to his family and friends as his son.

On March 31, 2003, Sandy sent Craig an e-mail describing Craig’s care of Jeffrey S. as “childcare” and stating that the childcare was no longer needed.

On April 3, 2003 Craig filed a Petition for Paternity alleging that he was Jeffrey’s presumed father pursuant to Family Code Section 7611(d). The code section provides that a man is the presumed father of a minor child if he “receives the child into his home and opened holds out the child as his natural child.” Craig also filed a motion for visitation and requested a DNA test to confirm his paternity.

Prior to these matters being heard Sandy had joined her husband Brian as a party to the proceeding. Brian contended that since he was Sandy’s husband at the time of Jeffrey’s conception, he was afforded the benefit of two evidentiary presumptions that he was Jeffrey S.’s father, one of which creates a “conclusive” presumption of paternity.

Brian contended that, pursuant to Family Code Section 7540, he was conclusively presumed to be Jeffrey S.’s father. That section states, in pertinent 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”.

Brian also contended that, pursuant to Family Code Section 7611(a), he was afforded an additional presumption of fatherhood of Jeffrey. Family Code Section 7611(a) states that a man is a presumed father if:

“(a) he and the child’s natural mother are or having been married to each other and the child is born during the marriage….”

The trial court found that Brian’s assertion of the Family Code Section 7611(a) presumption essentially trumped Craig L.’s presumption asserted under Family Code Section 7611(d). The trial court believed that “there is a strong public policy in California to maintain the integrity of the unitary family and the welfare of Jeffrey requires a concern for Jeffrey’s perceived legitimacy.” In determining that Craig did not have standing to assert paternity, the trial court found that it was not necessary to address Craig’s motion for temporary visitation and DNA testing.

Craig L. appealed and the Appellate Court reversed.

The Appellate Court found that Craig L.’s assertion of the presumption under Family Code Section 7611(d) was sufficient to confer on him the status of presumed father.

With regard to Brian’s assertion of the “conclusive” presumption of Family Code Section 7540, the court also found that although there mmight be a factual dispute as to whether Brian was in fact cohabiting with Sandy during the time in which Jeffrey was conceived, Family Code Section 7541 allows a “presumed father” along with the minor and the husband, to dispute parentage and/or establish paternity by filing a motion for paternity testing within two years after the minor’s birth. Thus, Craig L.’s application was deemed timely.

The court distinguished the facts in this case with the case of Dawn D. v. Superior Court (1998) 17 Cal.4th 932. In that case, a biological father had attempted to invoke the Section 7611(d) presumption, contending that the biological mother had not allowed him the opportunity to receive the child in his home and openly hold the child out as his own thereby preventing him from establishing his claim for paternity, notwithstanding his inability to hold the child out he claimed the presumption since he was prevented from doing so.

The court, in distinguishing this matter from Dawn D., found the fact pattern significantly different in this case. As the court stated on Page 15059:

“Craig’s claim is, of course, markedly different than the claim considered in Dawn D….Craig alleges facts which would give rise to the presumption provided by 7611(d). …in sum…where a couple permits such a relationship to develop they cannot unilaterally terminate it”.

The court then addressed the argument of Sandy and Brian that in light of the conclusive presumption provided by Section 5740 and the state’s conceded interest in preserving the stability of the marriages, that presumptions provided to husbands under Section 7611(a), will always outweigh than the presumption afforded men who have taken children into their homes and acknowledged them. The Appellate Court noted that such a “per se” rule, which could require termination of an existing paternal relationship in favor of preserving any marriage, without regard to the harm the child might suffer, is at direct odds with the entire statutory framework governing paternity actions.

“A rule which would not require evaluation of the nature of a man’s relationship with a child before terminating that relationship is not consistent with the well being of a child or the importance our court’s have placed on the existence of such a relationship”.

The Appellate Court recognized that the impact of the relationship between an unwed father and his child on the state’s interest in preserving marriage will vary from case to case. However, the Appellate Court noted that they could find no case that holds the state’s interest in marriage will always outweigh the interest of a man and a child with whom the man has established a paternal relationship. Indeed, the express language of Family Code Section 7612(b) requires that:

“If two or more presumptions arise under Section 7611 which conflict with each other the presumption which on the facts is founded on the weightier considerations of policy and logic controls.” [emphasis added]

The Court again noted that in Dawn D. the unwed father had not established an existing parent-child relationship and thus could not rely on a presumption of paternity.

Because the trial court did not engage in any fact finding with regards to the nature of Craig’s relationship with Jeffrey, it could not and did not properly weigh that relationship against the interest embodied in Brian’s status as a presumed father under Section 7611(a).

In weighing the conflicting interests under Section 7612(b), the trial court must, in the end, make a determination which gives the greatest weight to the minor’s well being.

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