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Neil S v. Mary L. et al

September 16, 2011


APPEAL from an order of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. (Super. Ct. No. ED80119)

The opinion of the court was delivered by: O'rourke, J.



Appellant Neil S. appeals from an order granting respondents Mary L. and Scott J.'s motion*fn1 to quash Neil's petition to establish paternity, obtain joint custody and reasonable visitation, pay child support, and for genetic testing. In that petition, Neil sought to establish a parent-child relationship with twins born to Mary while she was married to Scott, who had accepted the children as his own. Asserting his relationship with the children began in utero while he attended to Mary's neonatal care and sang or talked to the unborn children, and that Mary and Scott obstructed his ability to take them into his home, Neil contends he has a constitutionally protected due process right to an opportunity to develop or continue his relationship with them. He asks this court to hold Family Code section 7611, subdivision (d)*fn2 of the Uniform Parentage Act (§ 7600 et seq., the UPA) and its "related statutory scheme" unconstitutional both facially and as applied to these facts on due process and equal protection grounds. He also challenges the constitutionality of section 7612, subdivision (b), requiring a court to reconcile conflicting paternity presumptions, when applied to presumed unwed fathers.

We conclude the family court correctly dismissed Neil's petition for lack of standing, and that, on these facts, Dawn D. v. Superior Court (1998) 17 Cal.4th 932 (Dawn D.) defeats his claim to a due process "opportunity" interest in establishing a parent-child relationship with the children. We reject Neil's remaining contentions. Accordingly, we affirm the order.


On May 2, 2009, Mary, who has been married to her husband Scott since June 2001, gave birth to twins. Scott was present at the birth and has accepted the twins as his children.

In February 2010, when the twins were ten months old, Neil filed a petition to establish paternity and for an order awarding him joint custody and reasonable visitation, as well as genetic testing to determine his status as the children's biological father. In his supporting declaration, he stated that from May 2008 to October 2008, he and Mary, both career sailors, had an affair while they were stationed in Bahrain. He asserted they spoke of marriage and had agreed to marry each other. Neil was also married at the time. According to Neil, Mary left for San Diego in October 2008 and upon her return to Bahrain, tests indicated she was pregnant with twins. He claimed she told him she had conceived in the middle to early part of September, and the children were his.

Neil declared that from October 2008 until Mary left Bahrain in February 2009, he took her to doctor visits and generally cared for her, and spoke, read and sang to the twins in utero. According to Neil, after Mary returned to San Diego in February 2009, she notified him that she and Scott would be raising the children, and her husband's name would be placed on their birth certificates.

Mary moved to quash the petition. She argued Neil lacked standing to pursue an action to determine the existence of a parent-child relationship under section 7630, and would never prevail in his attempt to be deemed the twins' presumed father; that her husband was conclusively and rebuttably presumed to be the children's father. In her supporting declaration, Mary disputed many of Neil's assertions concerning the nature and extent of their relationship. She asserted that between October 8, 2008, and October 22, 2008, she and her husband resided together at their home and engaged in sexual relations on a regular basis, and thereafter, in November 2008, she discovered she was pregnant. Mary stated Scott was involved in preparing for the twins' arrival and birth, was present at their birth, chose their names with her, attended parenting classes with her, and visited the twins every day during the month they were in neonatal intensive care as a result of their premature birth, helping with their care including feeding and swaddling. Scott's name was placed on the children's birth certificates. According to Mary, Scott was a "stay-at-home" dad and the twins' primary caregiver at the time and did their feeding, changed diapers, bathed and dressed them, took them to doctors' appointments, played and read to them, and was otherwise responsible for meeting their needs since birth.

Neil opposed the motion to quash, in part arguing the marital presumption of paternity did not apply and the state had a compelling interest in establishing the paternity of children for purposes of their access to benefits, knowledge of family medical history and their emotional development. He argued public policy was best served by determining the children's true paternity. Neil challenged Mary's truthfulness and, in an accompanying declaration, set out additional details of their relationship and circumstances surrounding the date of conception, his involvement in the children's prenatal care, his attempts to work out a child sharing arrangement, his conduct in holding the children out as his own to his family members, and his efforts to file a voluntary declaration of paternity. He asserted Mary had admitted he was the children's father and initially promised he would be involved with them, but later ended her contact, even returning Christmas gifts he had sent them. He emphasized there were two intact families available to raise the children. Neil's wife and parents submitted declarations expressing their desire to help raise the children.

Mary moved to strike most of Neil's declaration and much of his responsive submission.*fn3

The court granted Mary's motion: quashing Neil's petition and ordering the action dismissed. It ruled Neil had presented evidence that he held the children out as his own, but found it undisputed that he did not receive them into his home. The court found while his evidence showed he made "reasonable, if not extraordinary" attempts to receive the children into his home but was prevented by Mary from doing so, such a theory of "constructive receipt" had been rejected by Adoption of Kelsey S. (1992) 1 Cal.4th 816. Thus, it ruled Neil could not establish presumed father status under section 7611, subdivision (d). Finding the issue addressed by Dawn D., supra, 17 ...

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