Metropolitan News-Enterprise


Monday, September 19, 2011


Page 1


C.A. Rejects Challenge to Presumption of Paternity


By a MetNews Staff Writer


The Fourth District Court of Appeal Friday rejected a constitutional challenge to the statutory presumption that a mother’s husband is the father of her child.

Div. One affirmed the dismissal of a suit by Neil S., as he was identified in the opinion, seeking to be declared the father of a child born to a woman identified as Mary L.

According to the parties’ pleadings, the two had a relationship in Bahrain, where both were stationed with the Navy. Mary L. left Bahrain in October 2008, and subsequently learned she was pregnant with twins.

The children were born in May 2009. Mary L. asserted that her husband, to whom she was married in 2001, was present at the birth and has accepted the children as his.

Neil S. claims that Mary L. told him the children were conceived in September and were his. He declared that he and Mary L. planned to marry, although he too was married, and that he helped Mary L. with her pregnancy and sang and talked to the children in utero, before she returned to San Diego. He also said that he had held the children out as his own to family members and attempted to file a voluntary declaration of paternity, and submitted declarations from his wife and parents saying they would help raise the children.

Mary L. responded that Neil S. had misstated several of the details of the relationship, and that her husband had helped prepare for the children’s arrival and birth, that his name was on the birth certificates, and that he had become their primary caregiver as a “stay-at-home” father.

San Diego Superior Court Judge Joel R. Wohlfeil said it was not possible for Neil S. to establish presumed father status under Welfare and Institutions Code Sec. 7611(d).

Justice Terry O’Rourke, writing for the Court of Appeal, said Neil S. lacked standing to bring the action. He cited Sec. 7540, which codifies the presumption that “the child of a wife cohabitating with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”

The presumption is considered conclusive unless challenged under certain conditions, none of which apply to the case, O’Rourke said.

Under Sec. 7611(a)’Rourke added, if a child is born during a marriage, or within 300 days of its termination, the mother’s husband is presumed the father, and no proof of cohabitation is required. The presumption may be rebutted by clear and convincing evidence, but only in an action brought by the child, the mother, or a presumed father.

Neil S. is not a presumed father, the justice explained, because the child was not received into his home within the meaning of Sec. 7611(d). Mary L.’s husband Scott, on the other hand, is presumed to be the father both under Sec. 7611(a), and, because he is raising the children in his home, under Sec. 7611(d).

The statutory presumptions do not violate due process, the justice concluded, because even if Neil S. is the children’s biological father, he has no constitutionally protected liberty interest in establishing a parent-child relationship with children born to another man’s wife.

O’Rourke discounted Neil S.’s attempt to distinguish his case from similar ones ruled on by state and federal courts in the past, based on allegations that Mary L. deceived him into impregnating her and believing he would be involved in raising the children, and on the willingness of his family to participate in raising the children.

“Our concern is the existence and nature of the child’s relationship with the putative father,” the justice wrote.

The case is Neil S. v. Mary L., 11 S.O.S. 5151.


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