Metropolitan News-Enterprise


Thursday, September 24, 2015


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C.A. Opts to Publish Opinion Founded on Proposition That Sex Must Precede Conception of Offspring


By a MetNews Staff Writer


The San Bernardino-based division of the Court of Appeal has ordered publication of an opinion, initially slated for non-publication, which is based on the proposition that a man could not be the actual father of a child if he did not have sex with the mother during the period of time when the child was conceived.

The opinion was filed on Aug. 26 and, at the request of the San Bernardino County Children and Family Services, was certified for publication on Tuesday.

At issue was whether the trial judge, A. Rex Victor, erred in terminating parental rights of an unmarried man, referred to as “O.F.,” whom the unmarried mother had identified as the father of her child, designated as “D.P.”

By pointing the finger at “O.F.,” the mother accorded him the status of an “alleged father.” He argued that if paternity tests had been ordered, he might have been elevated to the status of the “biological father,” entitling him to reunification services, and possible custody of the child.

Writing for the Fourth District’s Div. Two, Justice Carol D. Codrington pointed out that the child was “conceived in late August 2012, after father was incarcerated in July 2012” in a federal prison. She wrote:

“Taking into account D.P. was conceived after father was arrested and incarcerated on July 10, 2012, the juvenile court reasonably denied father paternity testing, since father could not have fathered D.P. while father was incarcerated.”

Codrington went on to say:

“In the instant case, the trial court could conclusively determine in the absence of genetic testing that father was not D.P.’s biological father. Therefore, the juvenile court did not abuse its discretion in denying father’s request for paternity testing and in finding that father was merely an alleged father, based on the evidence before the juvenile court.”

The case is In re D.P., E062886.


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