If He's not My Dad, then who is He?

Publication: Bar Association of San Francisco Bulletin, Volume 5, Number 3

Last November, Columbia University Professor Ruth Pawdawer wrote an article for The New York Times Magazine: "Who Knew I Was Not the Father?” (November 22, 2009) It related the story of Mike L., who requested that the Pennsylvania appellate courts declare that he was not the father of his daughter for child support obligation purposes. When his daughter was four years old, a DNA test revealed that he was not her biological father. He filed for divorce, but at the same time, to protect his custodial rights, he signed a declaration of paternity. A few years later, his ex-wife told him that she was marrying his daughter's biological father, Rob. Mike became "consumed with resentment” and brought the issue of child support before a family court magistrate. The magistrate found that both fathers should pay child support. However, ex-wife appealed the decision and the state appellate court found that Pennsylvania law did not allow for the recognition of two fathers of the same child (excluding adoption), so two men could not be ordered to pay child support. As the appellate court judge wrote, the law's consequence is that a man who "very well may be the biological father is able to avoid any direct support obligation" and the nonbiological father is left with "unjust results."

In California, as in Pennsylvania, paternity decisions are partially governed by codified English common law presumptions: Family Code Section 7611 provides that a man is presumed to be the natural father of a child if he is the husband of the child's mother and is not impotent or sterile and was cohabiting with her (Section 7640); or if he receives the child into his home and holds out the child as his natural child (Section 7611(d)). The California Supreme Court held in In Re Nicholas H. (2002) 28 Cal.4th 56 that the presumption that a man who receives a child into his home and holds that child out as his natural child is not necessarily rebutted when he admits that he is not the child's biological father. The Supreme Court stated that "a man who has lived with a child, treating it as his son or daughter, has developed a relationship with the child that should not be lightly dissolved ... This social relationship is much more important, to the child at least, than a biological relationship of actual paternity..."

Relying on this decision, the Supreme Court held in Elisa B. v. Superior Court (2005) 37 Cal.4th 108 that when a woman holds out her same-sex partner's child as her own, she cannot rebut the presumption of presumed parenthood by showing she is not the biological mother. In effect, this decision found that a child can have two parents who are both women. To come to this decision, the court had to distinguish its decision in Johnson v. Calvert (1993) 5 Cal.4th 84, a surrogacy case, which found that "for any child California law recognizes only one natural mother." The Court did so by rejecting the argument that a child could have three parents: a father and two mothers.

Pawdawer concludes with the suggestion that in cases like Mike L.'s, perhaps a nonbiological father could be granted custody rights while the biological father is charged with paying child support. In Mike L.'s case, this would require a finding that two men can be the father of the same child (absent adoption). With Nicholas H. and Elisa B., California may be closer to crossing that threshold.

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