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Preserving Your Parental Rights When You Aren’t the Biological Father

Parental Rights When Not Biological Parent

“You aren’t the father.”

These are some of the most unimaginably difficult words that a father can ever hear. You watched your child come into the world, got up in the middle of the night when they cried, took them to the doctor, fed them, clothed them, bathed them… loved them.

And one day, you find out that your son or daughter isn’t yours. They are still your child, whom you love above all else, but they are not yours. At least, not in the biological sense.

This realization is emotionally devastating, and we strongly recommend that anyone facing a situation like this should seek counseling or some sort of therapy. But it’s also necessary to understand that this emotional event has significant legal implications as well.

The legal rights of a birth parent are grounded in the assumption of a biological relationship between parent and child. When evidence—such as a DNA-based paternity test—comes to light that indicates that such a biological relation doesn’t exist, the legal relationship can also be affected.

California law subscribes to the concept of “presumed fatherhood.”

In California, the law operates under the basis of “presumed fatherhood.” California’s Family Code specifies circumstances under which an individual will be presumed to be the biological father of a child, and thus be accorded parental rights. A man is presumed to be a child’s father when:

  • They are married to the child’s natural mother at the time of birth.
  • Their marriage to the child’s mother is terminated for any reason less than 300 days before the child’s birth.
  • They attempt to marry the child’s mother less than 300 days before the birth (this is complicated by a number of secondary circumstances).
  • They accept the child into their home and clearly act as a father to the child (or as it’s sometimes described in a legal context, “holds out” the child to the public as their natural child).

For the most part, whens someone has donned the mantle of being the presumed father, it’s very difficult for parental rights to be challenged. In Dawn D. v. Jerry K., the Superior Court of Riverside County found that an alleged biological father had no right to compel the presumed father—who was married to the child’s mother—to do so much as take a blood test. This was despite the fact that the child’s mother had lived with the alleged father at the time of conception.

But regardless of whether you’re getting along with the child’s mother, you need a lawyer.

You may have a positive relationship with the child’s mother, and may in fact still be married. But despite this, you need to obtain the services of a lawyer. In the case of Dawn D. v. Jerry K. mentioned above, it was necessary to take the case to a superior court in order to protect the rights of the presumed father.

Right now, you may be dealing with a biological father who has suddenly intruded into your life. Is it safe to assume that they going to surrender any legal rights to the child, or are they going to want to be a part of the child’s life?

In 1989, in the case Michael H. v. Gerald D., the Supreme Court upheld the constitutionality of California’s existing paternity presumption law, which found that an adulterous biological father has no legal right to their child.

However, in response to this ruling, California’s Family Code was altered. Now, a biological father has two years from the date of a child’s birth to challenge the rights of a presumed father. While the State of California has demonstrated a strong interest in preserving nuclear families, during this time window, a biological father may be able to challenge a presumed father’s parental rights.

Maintaining parental rights to a child you are not the biological father is contingent on a number of factors.

If you have long acted as a child’s parent, odds are that you will be able to preserve your parental rights as long as you have adequate legal representation. But ultimately, there are a number of factors that affect how likely you are to preserve your parental rights if you are not the child’s biological father, including:

  • The child’s age
  • How long you’ve had a parent-child relationship with the child
  • Whether you are currently in a relationship with the child’s mother
  • Whether the child’s mother is amenable to preserving your parental rights
  • The quality of your relationship with the child
  • Whether the child’s biological father has been identified, and what their wishes are

Other states take a different view of parental rights, which can present a problem if a child is moved across state lines.

There are other considerations as well. Only about 20 U.S. states have presumed parenthood laws in line with California’s. If your child’s mother chooses to move to a state that doesn’t recognize a non-biological parent’s rights—such as the nearby state of Nevada—you may face an uphill battle in asserting the rights that California recognizes.

All of the above should make it clear that the matter of non-biological parental rights is a very complicated subject. If you are currently grappling with this issue, it’s wise to secure the services of a family law lawyer experienced in the complexities of child custody. If you have questions, please feel free to contact us at 916-400-4516, or send us a message using our website’s contact form.