Articles Posted in Paternity

The complexion and genesis of the “family unit” are evolving with each passing year. And breakthroughs in medical science as well as a growing acceptance of these changes have altered the way we perceive the modern family. But the state of the law in San Diego and throughout California has not kept pace with the times and the cultural and social changes taking place. Non-traditional families sometimes face more difficult issues when it comes to divorce, custody and visitation matters. If you are confronted with a child custody matter, it is important to contact a local family law attorney who can help you to protect and advance your rights.

In a recent article appearing in the Fresno Bee, apparently the actor Jason Patric is hoping to change state law to allow sperm donors, under certain circumstances, to become legal parents and share custody of children that result from the donation of their sperm. In response to Patric’s efforts, his former girlfriend is fighting the bill, asserting that the current law protects her as the child’s only legal parent since she never married Patric and utilized a medical procedure to conceive her child.

At the heart of this dispute is Senate Bill 115. The bill would allow a man whose donated sperm impregnates an unmarried woman to petition the courts for parenting rights by establishing his devotion to the child. According to an article in the Huffington Post, the primary intent of the bill is to permit a limited category of fathers to have “parentage” rights to children who they have brought into their homes and held them out as their own. The bill passed the Senate without one oppositional vote. It is currently in the Assembly attracting some controversy.

In many states, the Uniform Parentage Act (the “Act”) governs the determination of parentage of children who are born of unmarried parents. Under the Act, if a man provides his sperm to a licensed physician, with the intent of inseminating an unmarried woman, that man will be legally barred from asserting parentage of the child who results therefrom. SB 115 would not permit any and all sperm donors to assert parentage rights. To the contrary, only those donors who have a relationship with the child are afforded rights under the proposed law. Further, according to the above-referenced Huffington Post article, the only way that these men may establish such a relationship is with the consent of the biological mother. If the bill passes, the mother would be prohibited from terminating – on a whim — the father-child relationship so long as that child was conceived via fertility procedures conducted by a licensed physician.

The current laws are fairly complicated, enabling a man who is not the biological father of the child to establish parentage, but denying the sperm donor the opportunity to do so. With this in mind, anyone with a custody question or dispute with another parent is encouraged to reach out to a local family law attorney who is well-versed in the local rules and court procedures.
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San Diego parents engaged in child custody disputes typically face some complicated and emotional obstacles. But most are not as complicated as that of Bode Miller, the Olympic Skiing Champion who, according to a recent article, has filed two separate paternity suits against two different women, seeking joint legal and physical custody of two different children. The best way to proceed is in his case, and in any child custody matter, is to seek the advice and guidance of an experienced San Diego Family Law attorney who can adeptly navigate the court system.

Bode Miller is currently married to an altogether separate woman, Morgan Beck. She is pregnant with their first child together. But Miller just filed a paternity suit against ex- Sara McKenna, who lives in New York. They have a one-month old son together and Miller is asking a judge to force McKenna to bring the baby back to San Diego where Miller currently resides. He is also pursuing an order that would require McKenna to get written consent before she can take their son out of the State of California again.

Under California law, where couples are unmarried, the establishment of paternity (or “parentage”) is the legal procedure for seeking an award of custody, visitation and child support. In order to establish parentage, the parties need to obtain a court order or sign an official Declaration of Paternity indicating who the legal parents of a child are. Once parentage is ordered, parents may then ask the court, as part of the same case, to order child custody, visitation and child support orders.

As this case represents, many complicated issues can arise in child custody disputes where the parents live in different states. Under these circumstances, parties are emphatically encouraged to contact a local, experienced family law attorney, as the laws in different states may vary.

According to the article mentioned above, Miller is likely to face some additional obstacles to receiving joint custody. McKenna is reported to have argued in court that Miller is an unfit father and that he lives on a yacht, a residence that she says is not an appropriate place to raise a child. She further claimed that Miller has substance abuse problems and that he did not want to have the child in the first place.

A court will look at all of the evidence bearing on the best interests of the child. Aside from his custody dispute with McKenna, Miller has simultaneously filed a paternity suit against another woman named Chanel Johnson, also seeking joint and physical custody of a four year-old girl that he claims is his daughter.

While Miller’s multiple child custody disputes are not necessarily typical, many of the issues that have arisen so far actually do take place within the confines of Family Court in San Diego on any given day. Only an attorney well versed in the specialized legal procedures can help explain and protect your rights.
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Some of the most highly charged and emotional issues in San Diego arise in paternity cases. Even though modern marriages are ending in record numbers, unmarried parents are even more likely to live apart. There are three basic issues addressed in all paternity cases: custody, support and visitation. The San Diego Superior Court Judge will make orders for all three issues if an agreement is not reached.

Most paternity cases are resolved either by agreement or by legal action in San Diego. The parents can sign a voluntary acknowledgment of paternity at most prenatal clinics, hospitals, birthing centers and county offices. This form will legally establish the identity of the child’s parents, but it won’t resolve issues of custody, support and visitation.

Legal actions are typically considered adversarial in nature. Since the initial focus of most paternity actions is the collection of child support payments, disputes can arise easily and intensify quickly.

The best approach to resolving your paternity case may rest upon the nature of any unanswered questions. If a man knows he isn’t the child’s father, signing a voluntary acknowledgment of paternity could be a huge legal mistake. On the other hand, if DNA testing has already confirmed fatherhood, denial isn’t an option and the only procedure is to deal with the parenting plan and any support issues.

The amount of child support to be paid is determined by standard guidelines and is based upon the income of the parents as well as other guideline factors such as child support ordered from another relationship, spousal support ordered to be paid from another relationship, mandatory retirement, union dues, health insurance, tax filing status, income from all sources, percentage of time share, tax filing status and others . There isn’t much room for negotiating facts however issue spotting, such as a request to deviate from child support guidelines if you are legally obligated to support another child, is very important. If income or resources fluctuate, or the other party is being less than forthcoming about their income, then this may become a significant issue.

In most cases, visitation guidelines follow a standard model designed to address common questions: every other weekend and one weekday evening with all off track school time and holidays divided equally or some other model. As a general rule, neither parent can exercise unreasonable control over the other parent’s visitation time. One common dispute arises when the other parent says, “I don’t want the new girlfriend/boyfriend around my child.” Unless the new significant other poses a specific danger, such as a convicted child molester, the court probably won’t allow that condition to be imposed.

In some cases, a request for support triggers a demand for custody. It is important to seriously consider what is best for your child before initiating a custody battle. Unfortunately, there is an inverse relationship between the percentage of custody and visitation and the amount of child support. This means that the payor has a financial incentive to increase the timeshare and the payee has a financial incentive to decrease the time share. This is totally adverse and leads to litigation.

The Family Court decides custody questions according to the best interest of the child however there is now a department in DCSS Court which also hears custody and visitation issues. In considering alternatives, the court looks at a number of factors under the “best interests” test including continuing and frequent contact, bonding and stability among others. If the parents are able to maintain a cordial relationship for the child’s benefit, joint custody may provide a solution.
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Simply defined, “paternity” is another word for “fatherhood” as a practical definition in San Diego. But for many people, the legal concept of paternity has many meanings. The issues for “fatherhood” are the legal right for a parenting plan and the legal obligation to pay child support. In San Diego, a petition for a paternity judgment can occur in either family law court or at the DCSS court.

The most commonly understood aspect of paternity is the collection of child support. Even if a man has no emotional ties to his child and never sees his child, public policy expects him to contribute to the child’s financial support. Many single mothers eagerly anticipate receiving child support payments but may be reluctant to allow a real relationship between the father and his child. On the other hand, some fathers go to great lengths to avoid financial or emotional responsibility and do not want to see their child. It is very important for the father to analyze what their goal is. For example, some fathers in a paternity case may be currently married to a female who is not the mother and is their wife. They may have children with their wife. To have a relationship with a child not of the marriage may cause serious issues with their wife [perhaps even divorce] and their children of the marriage [perhaps even estrangement].

Financial bickering between the parents leads to other disputes. For example, some fathers try to turn the financial tables by fighting to obtain custody themselves in order to be on the receiving end of child support. Control issues can turn visitation into a confrontation. Each parent’s relationship with the child becomes an accumulating score card in a battle that may go unresolved for years. Often one parent, usually the father, may find it easier to simply fade out of the child’s life however this is clearly not in the child’s best interests. Of course, the child did not ask to be born and their health, safety, education and welfare should come first.

But while the adults are taking battle positions to protect their own interests, the child may have interests that aren’t being addressed. Below are some of these considerations.

What Paternity Means to a Baby
It may seem that a father has little to offer a baby or toddler. Diapers and bottles may be seen as a mother’s department. However, bonding begins at an early age, and feeling safe, secure and loved is important to the foundation of a child’s personality. Furthermore, a baby can sense a mother’s stress in a difficult situation. In 2013, the law in San Diego is clear that parenting is not a gender issue and many fathers are primary physical custodians and raising their children from infancy to adulthood. Times have changes and the law has changed as well.

Paternity and the Elementary Age Child
When children start school, it is common for them to compare their lives to their classmates. For children who are missing a father, or experiencing a succession of temporary father figures, it may become increasingly difficult for them to develop an essential sense of safety and security. It is common for children of this age to fantasize about their parents getting back together or to blame themselves for the breakup of the family. As the child develops early social relationships, it is common to associate with children in similar situations. This can affect the child’s later goals and aspirations as well. It is very important to have a strong bond with both parents and to have frequent and continuing contact under the law.

Pre-teens and Paternity
The pre-teen years may represent the greatest vulnerability to the child of a single parent home. Even as drug and gang temptations reach out to the child, the rising cost of child care may lead a working mother to provide less formal supervision after school. It is crucial that both parents work together so that their child can have the best childhood and life possible.

Teenagers and Paternity
Many teenagers consider their friends the most important aspect of their lives. Once again, the friends they choose will probably reflect their own lifestyle. It is at this point where many fathers may attempt unsuccessfully to reconnect with their child. Some statistics suggest that daughters raised without a father are more sexually vulnerable, and sons raised without a father are more likely to use drugs, join gangs and commit crimes. While there is no conclusive proof of this, it is important to recognize this so that this does not happen to your child.
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While simply being an unmarried mother in San Diego is certainly and most definitely no longer regarded as an issue in itself, there are many common issues that can cause significant problems for everyone involved.

Issue #1: Making a Unilateral Decision to Have a Baby
Having a child is a lifetime responsibility for both parents, financially, emotionally and physically. It isn’t fair for one parent to make the decision to bring a baby into the world and to impose the responsibility for that decision onto the other parent without their knowledge or approval. This is not a moral or legal issue as the law in San Diego is clear that a child’s best interests is to have a strong bond with both parents and to have frequent and continuing contact with both mother and father. Given the biology of pregnancy and child bearing, clearly the mother will make the decision whether to have a child rests with the mother before birth.

Issue #2: Mistakenly Naming the Wrong Father
Having multiple sexual relationships without practicing birth control can lead to legal issues in the future. Again, this is not a moral or legal issue and only one of the best interest of the child if the father is unknown or identified properly. Before DNA testing was a common practice, parents often relied on “who a child looked like.” Many children experienced significant emotional trauma when lack of sufficient family resemblance drove a wedge between them and their fathers. If a child believes a man is their father, and this turns out later to be incorrect, then the child will suffer for not knowing their true father and may feel emotions of abandonment.

Issue #3: Deliberately Naming the Wrong Father
More than a few women have deliberately pursued a sexual relationship with a “better” potential father after they’re already pregnant by one who may not have the financial means to support the child. DNA testing will reveal the truth, and leads to hard feelings and potential consequences to the child as above. The child may even blame the mother for not being able to have a relationship with the “true” father.

Issue #4: Encouraging the Wrong Father to Claim Paternity
A common situation occurs when a pregnant woman changes boyfriends. The new boyfriend, eager to join the family, signs on the birth certificate, calls himself “daddy” and they all plan to live happily ever after. In reality, the romance may end in a few months or years, and the boyfriend learns it’s too late to set aside the responsibility for paying child support. This may lead to a severing of the parent {father} child relationship and detriment to the child.

Issue #5: Assuming that Remaining Unmarried Gives You Full Control
Many women believe that establishing paternity entitles them to receive financial support for the child, but remaining unmarried automatically gives the mother full custody and control. Paternity encompasses three factors: support, visitation, and custody. Besides being financially responsible for support, fathers have the right to visitation and participation in parental decisions. They may also request and obtain physical custody if it is determined by the court to be in the child’s best interest. This is a “package deal” and it is not possible to obtain child support but deny parental rights for custody and visitation after a judgment of paternity is entered.

Issue #6: Denying Visitation
Whether or not parents are married or established in a long-term relationship, it is important for a child to have a relationship with both parents. Denying visitation can have serious legal consequences, and has even been known to result in a change in physical custody of a child. As above, the law really does not care about the parents and only about the “best interests” of the child which includes frequent and continuing contact, stability and bonding among others. Case studies have shown that children can resent a parent who denies their contact with their other parent. While this may make your life better in the short term [do not have to deal with the other parent’s involvement in the child’s life and yours], it may have severe consequences in the long term.

Issue #7: Listening to the Wrong Advice
Friends and family are quick to offer advice to the single mother. But listening to the wrong advice can have serious consequences. It is important to obtain impartial, independent and expert advice. Your best source of legal advice is a qualified, knowledgeable San Diego divorce lawyer.
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Many unmarried mothers in San Diego are urged by family, friends, and government to promptly seek paternity determinations in order to obtain financial support for their children. In some cases, this may seem to be a simple matter, especially if the parties have enjoyed an exclusive relationship for a significant time period.

However, there may be complex emotional factors that come into play. If a man has any doubt about whether or not the child is really his, the possibility of an eighteen plus year child support obligation may be seen more as a financial threat than anything else. In addition, once a paternity case is opened, this also “opens the door” for the father to request custody and visitation and a parenting plan. As such, it is best to analyze without emotion and based on the law and facts.

As family law has changed over the years, historic assumptions have fallen by the wayside. Mothers are no longer “assumed” to be automatically best qualified for custody. And most states, including California and in San Diego, have taken a pro-active approach to collecting both financial support and emotional support from both parents. It is no longer a gender issue in San Diego Court.

If you aren’t married to your baby’s father, there are two ways to legally establish paternity. The easiest is for both parents to sign a Voluntary Acknowledgment of Paternity form. These forms are available at prenatal care clinics, hospitals, birthing centers, and county offices. The forms must be notarized and have certain procedural requirements in order to be valid. They may be cancelled within sixty days of signing if the parties change their minds.

The other way to establish paternity is through court-ordered DNA testing and a request for a judgment of paternity. Again, there are certain procedural requirements to be met. For example, it is possible to privately submit DNA samples to online testing services, but the results are not usually accepted in court. This is due to the fact that the testing service may not be able to accurately determine the identity of sample contributors.

A paternity action will probably involve three separate issues: financial support and custody and visitation. Many unmarried mothers have been unpleasantly surprised when they receive notice that their baby’s father is requesting custody of the child and this can be as a direct result of requesting child support. As such, as above, it is important to consider all consequences before implementing any strategies.

The best way to avoid unpleasant aspects of a paternity question is to avoid difficult situations in the first place. Of course, that isn’t always an option. So your second best option may be to consult a qualified San Diego divorce lawyer. Even if you aren’t getting a divorce, the issues of support, custody and visitation are governed by the same laws, and a knowledgeable attorney can help protect your rights if the situation gets unpleasant. Be prepared to disclose all pertinent facts to your attorney. The attorney needs to know if there is a possibility you are mistaken about the father’s identity. Are there issues that may impact a custody determination or visitation terms? Has either party made threats or behaved in a manner suggesting they may try to remove the child from California or the United States? If parents can work together, joint custody may be a viable option to look into. If the romantic relationship has ended, you still need to maintain a reasonable working relationship with the other parent to try and avoid your life turning into a nightmare.
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Becoming a parent changes things. Being an unmarried parent can add complex legal and emotional issues, especially if the romantic relationship ends. For many men in San Diego, the first big question is “is the baby really mine?” and this can happen whether or not you are married. As San Diego is a large military town with branches of military service, some men find their wives have conceived a child while they are on deployment. It is possible to discreetly obtain inexpensive DNA testing at home from an online testing service. However, these results can only be used for your personal information; they probably won’t be admissible in court.

You can sign a Voluntary Acknowledgment of Paternity if you are not married. These forms are available at prenatal clinics, hospitals, birthing centers and county offices. They must be notarized. One big mistake men have made is to sign this form knowing the child belongs to a former boyfriend. Then the relationship ends and the man finds himself saddled with years of child support payments with no real emotional tie to the child. It is not advisable to make a decision based on emotion as circumstances {and emotion} can change.

A legal action to determine paternity can often begin with the intention of obtaining financial support by the mother. California law requires an unmarried mother seeking public assistance to cooperate in obtaining child support from the other parent and to list the father on forms used for the processing of obtaining state aid in almost any form. The court will order DNA testing in order to confirm than you are the child’s father.

Child support is determined according to an established set of guidelines. In family law court in San Diego, this is called the “Disso Master” program. It is very important for you to understand how this procedure works in order to avoid future problems. For example, if your income fluctuates seasonally, the timing of the calculation can result in significant variations in results. If both parents can maintain a cooperative relationship, joint custody can help to minimize financial support obligations.

If you suffer significant financial setbacks after a child support order has been entered, it is important to promptly consult an attorney and file a motion for modification as the child support orders for modification downward [or upward] are only retroactive to the date of the filing of the motion. This may help you being not in compliance with the order and avoiding enforcement mechanisms including wage garnishment, bank levies, property liens and even avoid going to jail for non-support.

Besides the responsibility to provide financial support for your child, paternity also gives you legal rights concerning the child. These rights include participation in parenting decisions, visitation, and may even include custody if the court determines it would be in the child’s best interests.

For many parents in custody or visitation disputes, new boyfriends or girlfriends on the other side can raise unpleasant control issues. As a general rule, one parent cannot exercise control over the other parent’s romantic relationships if those relationships do not present a significant verifiable risk to the child. Other potential problems may include moving, a change in religious practices or difficult medical decisions.
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One way to establish legal paternity in San Diego is for the parents to sign a Declaration of Paternity. This form is available at most hospitals and birthing clinics as well as prenatal clinics, welfare offices, county offices and courts. This is not necessary if the parties were married at time of birth or conception. Another method is to file a Complaint to Establish a Paternal Relationship in San Diego Superior Court. Filing the Complaint is opening a case and then filing a motion for custody and visitation called a “Request for Order” or RFO. This was changed in 2012 as prior the motion for custody and visitation was called an “Order to Show Cause” or OSC. The forms and procedures have changed and it is crucial to use the most current forms when filing and making sure that all is complete and in accord with the California Family Law Code as well as the San Diego Local Rules.

Having both parents named on the birth certificate is important for the child. It assures the child will be provided with
-Adequate financial support from both parents.
-Family medical history information.
-Health and life insurance benefits.
-Social Security or Veteran’s benefits.
-Inheritance rights in the event of a parent’s death.

Without a determination of paternity, either through the Declaration of Paternity or court-ordered DNA testing, a father has no rights to a child born outside of marriage. Once paternity is established, a father has all legal rights to custody and visitation the same as if the parties were married. He has the right to participate in parental decisions. If a father is awarded physical custody, the mother may be required to contribute to the financial support of the child, and will have visitation rights. The law in San Diego specifically states under the California Family Law Code that a Judge will not make a decision based on gender.

Signing the voluntary Declaration of Paternity eliminates the need for DNA testing. Some men sign a Declaration of Paternity even though they know the child isn’t theirs. They may mistakenly believe they can avoid responsibility for child support payments by either rescinding the Declaration of Paternity or demanding a DNA test if the relationship ends at a later date. The law is very clear and strict when it comes to setting aside a voluntary Declaration of Paternity or a finding of Paternity by another Court such as the San Diego Department of Child and Social Services [DCSS]. It is not advisable to sign the voluntary declaration of paternity or agree to paternity without a DNA test due to the long term consequences.

Even if later DNA testing conclusively proves the child isn’t yours biologically, San Diego courts may determine parentage as being “de facto”. If a man has acknowledged a child as his own and openly treated the child as his own, the “best interest of the child” rule may lead the court to find that the established parental relationship is best for the child even if the finding is unfair for the father. This is both a procedural and fact bases analysis.

Other men sign the Declaration of Paternity even though they are unsure if the child is theirs. You can perform a home paternity test to determine the facts. Home testing kits are available online for a minimal charge given the consequences of not taking the test. While these home test results will not be admissible in court, they can help you avoid making a bad decision. It may be better to learn an unpleasant fact than to spend years living with doubts that can have a negative effect on your future life.
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In San Diego, test results provide definitive proof of the identity of a child’s father and are most commonly used when parents are unmarried. However, a paternity test may be requested or ordered during a divorce if either party questions paternity of a child and there is a question or issue of “access” such as military deployment during the date of conception.

There are two common ways in which a positive paternity test may be utilized. First, the finding of paternity establishes a legal obligation to contribute financially to the support of the child. The second way in which a paternity test may be used is for a father to claim parental rights, such as visitation, input in important decisions regarding the child, and even custody. Given the low cost of a DNA test today as compared to even a decade ago, this is a certain way to establish who the father is.

Should a woman worry about the outcome of a paternity test? If she is unsure of the child’s paternity, test results can be embarrassing. If the parties are married, a negative paternity test is conclusive proof of infidelity. Even though there is a presumption that a child born when the parties are married is a child of the marriage, the law provides for relief upon proper application.

A knowledgeable San Diego divorce attorney can help minimize stress and help obtain favorable outcomes in the following circumstances:

– Single mother seeking support from known father.
– Mother discreetly determining which possible father is true father.
– Divorcing wife addressing false claim of infidelity.
– Divorcing wife managing true claim of infidelity.
– Mother fearing loss of custody.
– Mother negotiating support, custody and visitation in accord with San Diego law.

Under California’s no-fault divorce law, infidelity is irrelevant as “grounds” for a divorce. Even if a divorcing spouse has proof of infidelity, the calculation of property settlements is based upon financial division of the assets and debts and not fidelity. While a divorcing spouse who is determined not to be a parent may avoid paying child support, he will also have no legal right to visitation, decision-making or custody.

Custody and visitation issues may be stressful. However, the longer the child has gone without financial support or emotional bonding with the father, the more issues may arise. However, it is especially important to have legal representation in custody cases, especially if the other party already has a lawyer.

Paternity tests can be initiated by either parent or by the court in establishing support obligations. Payment for testing may be an issue; some local testing centers offer periodic free testing or special discounts for low-income clients. Tests obtained through the court system may be at a lower cost, but providers can be slow in processing results.

It is also possible to obtain DNA test results from online sources by taking samples yourself and mailing them in. However, home test results may not be legally admissible as the identity of contributors cannot be confirmed. These tests are best used for discreetly previewing results of “official” tests or for an informal determination before proceeding with any actions.
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A California Appellate Court held that acclaimed bodybuilder Ronnie Coleman is not required to pay child support for the twins he fathered through artificial insemination. A 2008 court order had directed him to pay child support in the amount of $4,000 per month. The case illustrates the gray area that still exists in much of California paternity law, and why an attorney is so important if you find yourself embroiled in a San Diego paternity action.

Coleman had been in a relationship with Jo D. while the two were neighbors in Texas more than 20 years ago. In 2006 the woman was living in California, and Coleman donated sperm for her in vitro fertilization. In 2007, she gave birth to triplets, one of whom died the next year. The birth certificate listed Coleman as the father, and he signed a declaration of paternity, which established legal, but not biological, fatherhood.

In December 2007 Coleman married another woman, and in April 2008 Jo D. sued him for child support. The court ordered him to pay child support while the suit was pending. Coleman argued he was not the “natural father” and asked that his declaration of paternity be set aside. He filed an appeal after a state court made the child support order final in October 2010.

California Family Code section 7613(b) reads: “the donor of semen . . . for use in artificial insemination or in vitro fertilization of a woman, other than the donor’s wife, is treated in law as if he were not the natural father of a child thereby conceived.” A court may determine that the sperm donor is the biological father, however, if he marries or attempts to marry the mother, receives the child into his home, and holds the child out as his biological child. California Family Code section 7611(d).

Here, Coleman’s actions were wholly inconsistent with the statutory criteria in that he did not at any time raise the children in his home, and, rather than marrying the in vitro mother, he married another woman in 2007, shortly after the donation procedure.

The court also made its determination based on a previous California case, Steven S. v. Deborah D., in which a man was attempting to establish paternity for a child he had fathered through artificial insemination with a woman he was intimately involved with but to whom he was not married. The woman argued against paternity, and the court agreed, stating that the clear language of 7613(b) guarantees the right of women to bear children without fear of paternity claims, as well as the right of men to donate sperm without fear of liability for child support. The court found here that because Coleman and Jo D. had conceived through artificial insemination, any agreements between them as to parenthood were void, since the facts of their case fell squarely within the parameters of 7613(b).
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