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Praternity-Presumption Rebuttable
(In re JESUSA V)

Paternity-Presumption of Paternity Rebuttable
(In re JESUSA V)

Accordingly, Heriberto was not denied any statutory or constitutional rights when the juvenile court proceeded to determine his presumed father status while his attorney was present but he was absent.

B

As the juvenile court recognized, both Paul and Heriberto satisfied the qualifications for presumed fatherhood under Family Code section 7611,[4] the relevant provision of the Uniform Parentage Act (§§ 7600-7730, hereafter UPA).  Paul qualified under section 7611, subdivision (a), in that Jesusa was born during his marriage to the mother, as well as subdivision (d), in that he had received the child into his home and openly held her out as his child.  Heriberto qualified under subdivision (d) in that he too had received Jesusa into his home and openly held her out as his child.  

Although more than one individual may fulfill the statutory criteria that give rise to a presumption of paternity, “there can be only one presumed father.”  (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1115 (Kiana A.); Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1223.)  How those competing presumptions are to be reconciled is set forth in section 7612:  “(a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2 or in Section 20102, a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.  [¶]  (b) If two or more presumptions arise under Section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.  [¶]  (c) The presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man.”

Heriberto claims that his biological paternity constitutes clear and convincing evidence rebutting Paul’s claim to presumed fatherhood under section 7612, subdivision (a).  In the alternative, he claims that even if Paul’s claim to presumed fatherhood is not rebutted, it is outweighed by Heriberto’s claim under section 7612, subdivision (b). 

1

In In re Nicholas H. (2002) 28 Cal.4th 56 (Nicholas H.), we considered whether a presumption of fatherhood arising under section 7611 is necessarily rebutted under section 7612, subdivision (a) when, as here, the presumed father admits that he is not the biological father of the child.  (Nicholas H., supra, at p. 58.)  We held, in accordance with several Court of Appeal cases, “that a presumption arising under section 7611(d) is not, under section 7612(a), necessarily rebutted by clear and convincing evidence that the presumed father is not the biological father of the child.”  (Id. at p. 64.) 

Our holding was based on the text of section 7612.  We observed first that subdivision (a) provides merely that a presumption under section 7611 “ ‘may be rebutted in an appropriate action only by clear and convincing evidence.’ ” (Nicholas H., supra, 28 Cal.4th at p. 63.)  Accordingly, the statute did not contemplate a reflexive rule that biological paternity would rebut the section 7611 presumption in all cases, without concern for whether rebuttal was “appropriate” in the particular circumstances.  We found additional support in section 7612, subdivision (b), which directs the juvenile court confronted with conflicting presumptions to prefer the presumption which on the facts is founded on the weightier considerations of policy and logic.  “As a matter of statutory construction, if the Legislature had intended that a man who is not a biological father cannot be a presumed father under section 7611, it would not have provided for such weighing, for among two competing claims for presumed father status under section 7611, there can be only one biological father.”  (Nicholas H., supra, 28 Cal.4th at p. 63.)

In re JESUSA V  Filed March 1, 2004-S106843
 

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