How Many Legal Parents can a Child Have? More Than You’d Think!

Did you know, in some situations, the Court will recognize more than 2 people as the legal parents of a child? All of those people will have custody rights with respect to the child.

A common situation in which the Court might consider recognizing a third parent is when a woman who is married has had an extra-marital affair, and a she becomes pregnant. There are two statutes that allow the court to consider a third parent in that type of situation: Family Code sections 7540 and 7611.

Family Code section 7540 says “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.” This means if a married woman gives birth to a child during her marriage, even if the pregnancy resulted from an extra-marital affair, the court presumes her husband is the father. This presumption is conclusive.

On the other hand, Family Code section 7611 sets forth a number of rebuttable presumption for when a person will be a presumed parent of a child. The most common presumptions being: (1) if the presumed parent is married to the mother when the child is born (or if the child is born within 300 days of termination of the marriage), and (2) if the presumed parent receives the child into his or her home and openly holds out the child as his or her natural child. Section 7611 is more inclusive in its use of language than 7540 for families of which the parents are not heterosexual.

In determining if a presumed parent has received the child into his or her home and openly held out the child as his or her own, the court considers a variety of factors, of which no one factor is determinative. Factors California courts have considered include: whether the presumed parent actively helped the mother in prenatal care, whether the presumed parents promptly took legal action to obtain custody of the child, whether and how long the presumed parent cared for the child, the number of people to whom the presumed parent had acknowledged the child, and so forth. This means, if the non-husband believes the child to be his (whether or not that is biologically true), and receives the child into his home and openly holds the child out as his own, he will be considered a presumed parent, even if the mother is married. In which case, the child would have 3 presumed parents: the mother, her husband, and the man that held the child out as his own.

What about a paternity test? A challenge against a presumed parent, using genetic testing, can only be brought within the first 2 years of the child’s life. This limitation is for the best interest of the child. By age 2, the child has likely bonded with his or her parents, and genetic testing won’t change that for a child.

For example, imagine a Husband finds out on his son’s 16th birthday that the son’s biological father is a man his Wife had an affair with. Does that mean he’s magically no longer his son’s father under the eyes of the law? No! At that point, genetic testing really doesn’t matter for the best interest of the son.

What’s the point? The legal purpose of presumed parentage is to establish standing for those parents to seek custody orders and have legal authority with respect to the child. Presumed parentage is not automatic. A person who believes they are a child’s presumed parent must file a motion with the court, and the court must find, based on the evidence presented, that person to be a presumed parent of the child. Only then can a third parent petition the court for custody orders, and retain the same rights as to the child as his or her natural parents would. Importantly, however, the court will always consider the best interest of the child when determining custody/visitation among the parents, however many there may be.

Do you need assistance with a paternity action or situation? Give us a call at (408) 288-7800! With our 40 years combined experience, we can help you to navigate around these complicated paternity statues in order to protect your rights.

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