California Divorce and Family Law

Case Law Development: Former spouse granted presumed father status to challenge whether he is the actual father

Former husband presented sufficient evidence to show he might qualify as presumed father of ex-wife's son where he was named as father on child's birth certificate, acknowledged his paternity, and received child into his home. Adult child stated in his declaration that presumed father always held himself out as his father, supported him emotionally and financially his whole life, and visited or vacationed with him and his ex-wife frequently. In addition, the presumed father's ex-wife said in declaration that she continued marital relationship with him for many years despite their divorce, with former spouse providing financial support for her and her children.

Said v. Jegan, filed January 23, 2007.

Case Law Development: Publicly Admitting Paternity Sufficient to Establish Inheritance Rights

The California Court of Appeals interprets its probate code to provide that "a child born out of wedlock to establish a father-child relationship for intestate succession purposes by providing clear and convincing evidence that the father "has openly held out the child as his own."  Here, the father was aware he had fathered a son and had offered to marry the mother who refused and married another man who had raised the son as his own. When the son was 18 years old he learned of his biological father's identity and established a relationship with the father's family.  Despite the fact that father admitted he was the biological father, was not interested in establishing a relationship with the son and limited his contact with him.  The court held that father's acknowledgement to family members and others that he was the biological father was sufficient to establish his paternity under the probate code -- neither a desire for a relationship with the son nor any formal written acknowledgment of paternity were required.

Estate of Burden, 2007 Cal. App. LEXIS 48 (Jan 16, 2007)

From the Family Law Prof Blog.

Unwilling father tests men's rights

They had sex. She got pregnant. She sued for child support. Now, he's suing back, contending that men have a constitutional right to "avoid procreation."

With the suit, Matthew Dubay, 25, of Saginaw, Mich., becomes the public face of a "men's rights" movement that contends men should have the same ability as women to decide whether to have children.

Supporters of the movement are calling the case "Roe vs. Wade for men"--a precedent-setting case that could define a man's right to choose parenthood.

The case is the first to assert a constitutional freedom to "choose not to be a father" under the equal protection clause, said Dubay's attorney, Jeffery Cojocar.

Child support isn't the only issue at stake: Dubay doesn't want any of the other legal or emotional responsibilities that come with parenthood, Cojocar explained.

The National Center for Men had been planning this kind of legal challenge for more than a dozen years and recruited Dubay as the plaintiff. "There's such a spectrum of choice that women have--it's her body, her pregnancy," Mel Feit, the group's director, told the Associated Press. "I'm trying to find a way for a man also to have some say over decisions that affect his life profoundly."

Legal experts said they don't think the case, filed Thursday in U.S. District Court, has a prayer of success. "It's a lost cause," said Charles Kindregan Jr., a professor at Suffolk University Law School in Boston.

Having sex is an inherently risky enterprise and the only way to enforce a man's right not to father a child after conception would be to compel the woman to have an abortion, Kindregan explained. "The courts are not going to buy that," he said. "That's her choice, not his."

The facts of Dubay's case are common to many romances that don't turn out the way people hoped.

"I can understand why people might be sympathetic to Mr. Dubay if he was duped into becoming a father," Boyer said. But if the child is his--as is the case--"this shouldn't be about him and his rights; it should be about this child and the child's needs."

Dubay's phone has been ringing off the hook over the past 24 hours.

The entire story is in the Chicago Tribune

Biological father can't challenge paternity to child conceived during mother's marriage

Either a child, natural mother, or "presumed father" may file an action to determine paternity. A "presumed father' is a man to whom the mother is married, or, if no longer married, was married within 300 days of the child's birth. Another "presumed father" is one who receives the child into his home and openly hold out the child as his natural child.

In a recent California case, the court said that a biological father who had no relationship with the child could not challenge paternity. The court also found that this would not violate the due process rights of the biological father.