California Court of Appeal, First District, Third Division
Superior Court, Marin County, Hon. Verna A. Adams, Judge. (Marin County Super. Ct. No. FL1205751).
[166 Cal.Rptr.3d 378] Gregory R. Ellis, Stephen B. Ruben, San Francisco, Diana L. Leonida, for Appellant V.S.
Deborah H. Wald, San Francisco, for Respondent M.L.
V.S. (Victor)  appeals the dismissal of his petition seeking to establish that he is the father of one-year old Donald. Based on undisputed
facts, it appears that while Victor and M.L. (Mary) were romantically involved, Victor impregnated Mary. About one month before Donald was born their relationship terminated and Mary married Roger. Mary and Roger brought Donald into their home as their son and have prevented Victor from having contact with the child. In response to Victor's petition to establish a parent-child relationship, Mary moved to dismiss the proceedings on the ground that Victor has no standing to bring the action, and the court granted the motion. We conclude that under the Family Code as it now reads, Victor does have standing to bring the petition and that further proceedings are necessary to determine whether Victor or Roger should be adjudicated to be the child's legal father.
Without elaborating on the parties' understandable angst reflected in the record, the facts necessary to resolve the issues on appeal were succinctly summarized in the trial court's tentative decision: " The facts are not in dispute. Although she stops short of saying so outright, [Mary] apparently admits that [Victor] is Donald's biological father.... [Mary] married Roger ... before Donald's birth; [Roger] is named as the father on Donald's birth certificate. [Roger] has received Donald into his home and has openly held out Donald as his natural child. [Victor] has never met Donald and has no relationship with him; clearly he would like to do so but [Mary] has thwarted [Victor's] attempts."
Donald was born April 20, 2012. After discovering the birth and making unsuccessful efforts to gain access to the child, on December 27, 2012 Victor filed a petition to establish his parental relationship with Donald, together with a request to compel genetic testing and for other related relief. Mary then filed a motion seeking " an order quashing this proceeding and dismissing this action due to [Victor's] lack of standing (FC 730, subd. (a); Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 937-938[72 Cal.Rptr.2d 871, 952 P.2d 1139].) [ Dawn D. ]." The court's tentative ruling to grant Mary's motion explained, " Roger ... is Donald's presumed father pursuant to FC § 7611(a) and (d). [Roger] and [Mary] were not married when Donald was conceived, but FC § 7611(a) does not include that requirement; it creates a presumption of paternity if the child is born during marriage and does not state that the child must have been conceived during marriage. If the Legislature had wished to interpose the latter requirement, it could [166 Cal.Rptr.3d 379] have done so. Thus, [Victor] does not have standing to pursue a [Uniform Parentage ...