M.M. v. D.V. involved a biological dad asking the court to recognize him as a child’s father based on Kelsey S. and a fairly new law that acknowledges that children can have more than two parents.
The biological father and the mother in this case were in a relationship around the same time that mother was in a relationship with another man. After the mother found out that she was pregnant, she told the biological father that the child was not his based on information from her doctor. The mother married the other man. The husband signed a Voluntary Declaration of Paternity, and his name was placed on the child’s birth certificate.
When the child was around two, the mother learned that the child had a rare genetic condition and asked the biological father if he could be tested. After finding out that he was the father, the biological dad filed a petition for paternity asking the court to identify him as a presumed parent and be recognized as a third parent under Family Code section 7612(c).
The trial court rejected the biological father’s claim not only as a third parent but also as a presumed parent. It stated that under a Kelsey S. analysis the biological father did not take immediate action to determine if he was the father and be identified as a presumed father. It further held that in order to be a third parent to the minor child, the third parent would need to have an established relationship with the child. The biological father appealed the order.
The Appellate Court upheld the order. It stated that qualification as a presumed parent under Kelsey S, requires the biological father to quickly assume parental duties. By waiting two years, he did not qualify as a Kelsey S. parent even though the mother told him that he was not the father. He should have demanded testing as soon as he learned of the mother’s pregnancy. The court also held that in order to qualify as a third parent, the moving party must prove that it would be detrimental for the minor child to only have two parents and that there is an existing, rather than a potential, relationship between the child and the third parent.
If you need legal advice and are looking for a family law lawyer in Orange County to address an issue such as paternity or a divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.
Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not address other factors which may play a significant role in a particular dissolution. Circumstances in your divorce may alter the results in your dissolution. Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
