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C.A . v. C.P. - 29 Cal. App. 5th 27, 240 Cal. Rptr. 3d 38 (2018)


Fam. Code, § 7611, subd. (d), provides that a person is presumed to be the natural parent if the presumed parent receives the child into his or her home and openly holds out the child as his or her natural child. 


A wife had an affair with her coworker (plaintiff C.A.), She hid this fact from her employer and initially, even from husband.  Even after the husband found out, the marriage remained intact and the wife and husband (defendants C.P. and J.P.) raised the child together. For the first three years of the child's life, the couple allowed plaintiff to act in an alternate parenting role, and the child bonded with him and his close relatives. When plaintiff filed a petition seeking legal confirmation of his paternal rights, the married couple excluded plaintiff from the child's life. The trial court found that wife misled the court at an interim custody hearing, prolonging what the court later viewed as an unwarranted separation. Despite this period of separation, the court found the child was still bonded to all three parents and found this to be a “rare” case where, pursuant to statutory authority, each of three parents should be legally recognized as such, to prevent detriment to their child. Defendants appealed.


Did the biological father have parental rights, as a third parent, over a child who was conceived during the married mother's affair with the biological father?




The Court of Appeal of California held that a child's biological father had standing to bring his action seeking legal confirmation of his paternal rights. Affirming the judgment, the Court further held that the trial court did not err finding that the biological father was a third parent under Fam. Code, § 7612, subd. (c) because a strong, long, and enduring bond was shared by the child and the biological father from the time leading up to her birth and from her birth and following for more than three years, he was deeply involved in her life until he was unilaterally excluded from visits by the child's mother and her husband after he filed his petition for custody, and recognizing his role would not remove the child from a stable home. The trial court's finding that the biological father was a third parent did not interfere with the State's interest in preserving the institution of marriage or impinge on the parental rights of the mother and her husband. The fact that defendant husband was conclusively presumed to be the child's father did not exclude the possibility that she may have a second father.

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