SAN DIEGO- Have you been following Simon Cowell’s baby mama drama? The notoriously single Brit is now going to be a father after having an affair with the wife of a friend. The couple is now divorcing, but what does this mean for Simon’s parental rights?
California Divorce attorney Brent J. Pfeiffer, provides some insight stating, " In California, there are three classes of fathers: presumed, biological, and alleged. A presumed father is a man who meets one of the criteria of Family Code section 7611, including a father of a child born during a marriage to the mother. A biological father is a man who has established paternity but has not proven that he is the child’s presumed father. An alleged father is a man who has not established biological paternity or presumed father status."
Who’s Your Daddy?
So what rights does a biological father have when the mother is still married to someone else? In California, biology does not necessarily determine the legal paternity of a child. A man can be considered the legal father of a child even if later it is proven that he is not the biological father!
Under Family Code section 7611, a man is a presumed father if:
(a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage ends.
(b) Before or after the child's birth, he and the child's natural mother have attempted to marry each other (with certain other conditions applying)
(c) He receives the child into his home and openly holds out the child as his natural child.
(d) Certain other conditions are met in circumstances where the child resides outside the U.S. or the mother is deceased.
In H.S. v. Superior Court, (2010) 183 Cal.App.4th 1502, the court stated that a Voluntary Declaration of Paternity could not be used to defeat the marital presumption of paternity of a husband. In that case, since the biological father had no basis for asserting presumed father status, he lacked standing to challenge the legal paternity of the husband. California is clearly protective of a married man’s parental rights, but where does this leave the biological father?
Family Code section 7612 establishes that section 7611 creates a rebuttable presumption. The biological father may seek to establish paternity by rebutting presumed father status only by clear and convincing evidence. One way to overcome the presumption is through the use of blood testing. This can assist in cases where there may be more than one presumed father.
Are you confused yet? In California, presumed fathers are given greater protection than biological fathers, although that may seem contrary to common sense. It is tricky to navigate the necessary steps for a biological father to establish his paternal rights.
Rights of a Legal Parent
San Diego Divorce attorney Brent J. Pfeiffer notes that "once parenthood has been established, parents have equal rights to pursue custody. If a parenting plan is ordered, a parent may not be deprived of his/her visitation under that plan. Furthermore, It is a good idea to pursue your parental rights as soon as possible because a father who has not established himself as a legal parent may not be able to enforce visitation with the child. It is better to establish parentage before an issue arises, so that you don’t find yourself separated from your child while waiting for a ruling from the court.
If you a father or about to become one, you should become informed about how to protect yourself and your child. Many factors go in to a decision on this issue, so it is always wise to discuss your options and possible outcomes with an experienced family law attorney. Contact us today for your free consultation.
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