Child Custody: Alleged, Biological, and Presumed Parents

Posted April 21, 2023

Presumed Parents and Child Custody

When unmarried “parents” are no longer on amicable terms, we often see one attempting to prevent the other from exercising legal custody decision-making and from having parenting time with a child. This situation may involve a biological mother disputing that a man is the parent of the child, or it may involve same-sex couples, adoptive parents, sperm donors, or other relationship dynamics.

For example, a mother may not want a short-term boyfriend to try and exert parental rights over their minor child. In the alternative, a long-term parental figure of a child since the child’s birth or early age may wish to continue being the only second parent the child has ever had.

Who is right or wrong? Is a biological relationship important or required? Does a mother have a right to remain a sole parent? How are the children impacted? All and others are questions our clients ask.

The Welfare of the Child

California public policy is always rooted in what is in the best interest of the child and, as a result, the law won’t allow a parent to prevent a child from benefiting from an established familial relationship with a “parent.” Specifically, the policy is geared toward preserving and protecting developed parent-child relationships which give young children social and emotional strength and stability, especially when a “parent” has demonstrated a commitment to a child, regardless of biology.

Alleged, Biological, Presumed Parents: What’s the difference?

“Presumed parent” status is based on the familial relationship between the person asking to be the parent and the child, rather than any biological connection. The relationship is established if the “alleged parent” or “biological father” has received the minor into their home and openly held the child out as their natural child.

A “biological father” is a man whose paternity of a child has been confirmed, but who has not established that he qualifies as the child’s presumed father. Merely being a biological father is not sufficient to be a presumed parent. A common example is a sperm donor.

Lastly, an “alleged parent” is a person who may be a parent of the child but who has not established biological paternity or presumed parent status.

The difference is important for one very specific reason: only presumed parents are entitled to custody of their child, and to reunification services. Presumed parents are therefore the highest ranked in the hierarchy of the three types.

Further Reading » The Petition for Guardianship: Is it Really Necessary?

What does the “alleged parent” or “biological father” need to show the court to reach “presumed parent” status?

As you can imagine, every case is unique and very fact-intensive. Judges will have the discretion to determine what facts and evidence to give the most weight to. Working closely with an attorney to prepare your case will be critical to the outcome (and may determine whether you should proceed with the case any further).

A presumed parent does not need to have been married to the other parent, does not need to have lived with them, and does not need to have a close relationship with the other parent. The core issue is whether the person established a relationship with the child and demonstrated a commitment to the child.

If possible, once a person knows or reasonably should know of the mother’s pregnancy, they should attempt to assume their parental responsibilities as fully as possible. Even further, they must show their desire to assume full custody of the child.

If a relationship is formed sometime after birth, examples of factors that are likely to be important include regularly spending time with the child, including at the person’s home, in other people’s homes, in public, and having designated space and accommodations for the child, attending school events and doctors’ appointments of the child, and feeding, reading to, educating, and otherwise showing full parental responsibility for the child. Again, whether you are defending against or pursuing preferred parent status, it is important to consult with an attorney to review the totality of the facts and circumstances of your case. Any one or combination of several of these factors may not be enough for a determination of “presumed parent.”

It is important to know your rights, responsibilities, and options regarding child custody and visitation issues. Our family law team at Naimish & Lewis can advise you on this and other family law matters. To schedule an initial consultation with an attorney at our firm, please contact us.

Child Custody

Robert J. Allison, Esq.

Mr. Allison is a resolution-oriented associate attorney in our Family Law Practice. Even-keeled and fact focused, he is able to assist our clients understand their rights and obligations through the stress and smoke and mirrors presented in their divorce, custody, and domestic violence matters. During the initial consultation, and again once facts and evidence have been collected, Mr. Allison provides various strategies to help clients present their cases, considering cost, time, and client needs. He prides himself in not making false promises to his clients and is unafraid to speak the raw and sometimes harsh reality of how a Court will decide a matter given a specific set of facts and circumstances, both to his clients and to opposing parties. Many potential clients share that they are unhappy with their previous attorneys because they felt a lack of communication, an uncertainty about the family law process and timeline, and they do not understand the strategy in their case or the invoices they receive. While the legal process is complex, Mr. Allison attempts to reduce the confusion through a reasonable case management process involving client participation, because a family law case is often the most difficult period of time in a client’s life.