Holding Out as My Own

• Publication year: 2016
• Author: Avi Levy and Nathan W. Gabbard

Holding Out as My Own

Avi Levy and Nathan W. Gabbard

Avi Levy is a partner at Trabolsi & Levy, LLP, a family law firm in Santa Monica, CA. He has been practicing family law exclusively since 2002, and became a Certified Family Law Specialist in 2011. He is uniquely involved in the development of family law legislation as Chair of Affirmative/ Developing Legislation for the Family Law Section of the State Bar of California. Mr. Levy is also the Chair of Legislation for the Executive Committee of the Family Law Section of the Beverly Hills Bar Association, is on the Board of Directors of the Association of Certified Family Law Specialists, and is a member of the Association of Family and Conciliation Courts, and the Family Law Section of the Los Angeles County Bar Association. Mr. Levy was designated as a "Super Lawyer Rising Star" in the July 2006, 2008, 2010, 2011, 2014, 2015 and 2016 editions of the Los Angeles Magazine.

Nathan W. Gabbard is an associate at Trabolsi & Levy, LLP in Santa Monica, CA. He graduated from Southwestern Law School and became licensed by the California State Bar and United States District Court for the Central District of California in 2009. He participates in the Los Angeles Regional Standing Committee of the Family Law Section of the State Bar, is an Executive Committee Member of the LGBT Bar Association of Los Angeles, and is a member of the Leadership Council for the Los Angeles Center for Law and Justice. In the past, Mr. Gabbard has volunteered as a presenter of Safer Community workshops, providing information and opening a dialogue with incoming college students about domestic violence. Mr. Gabbard recently passed the California Family Law Specialist Examination and is awaiting confirmation of certification from the Board of Legal Specialization.

Pete's half-sister is Pete's mother. The daughter of Ricky's ex, Liz, from Liz's relationship with Charles is Ricky's daughter. The son of Carla via artificial insemination is the son of Sandra, Carla's ex because Carla lived with Sandra and Sandra's son, and Carla told family and social networks that Sandra's son was Carla's son.

Was that all perfectly clear and understood? Perhaps not? Those situations could be explained because a claimant¹prevailed on a request to be a presumed parent pursuant to Cal. Fam. Code §7611(d)?

Claimants may seek the status of a presumed parent pursuant to Cal. Fam. Code §7611(d), which provides: "A person is presumed to be the natural parent of a child if the person ... receives the child into his or her home and openly holds out the child as his or her natural child."

So what exactly constitutes "holding out" for purposes of section 7611(d)? If you are searching for a bright line answer, you will be searching for quite some time. A presumed parent claim pursuant to Cal. Fam. Code §7611(d) often involves nuanced variables regarding the claimant/child relationship², particularly in light of the ever-evolving social, cultural, and public policy construct of what makes a "family."

The parentage presumption under Cal. Fam. Code §7611(d) is derived from the strong social policy in favor of preserving an ongoing parent and child relationship.³ The state has an interest in preserving and protecting developed parent-child relationships that give young children social and emotional strength and stability.⁴ A parent who has lived with a child, treating the child as his or her son or daughter, has developed a relationship with the child that should not be lightly dissolved.⁵

Nature And Extent Of Relationship With Minor: Presumed Parent Status Pursuant to Cal. Fam. Code §7611 (d) Is Only Afforded To A Person With A Fully Developed Parental Relationship With The Minor

Although modern views on what constitutes a family may be growing to include relationships previously considered alternative⁶, the scope of the section 7611(d) presumption is not boundless. When addressing this presumption, the California Supreme Court was careful "not to suggest that every man who begins living with a woman when she is pregnant and continues to do so after the child is born necessarily becomes a presumed father of the child."⁷The purpose of Cal. Fam. Code §7611(d) is to distinguish between individuals who have already established a familial relationship with the child and those who have not.⁸ Granting a claimant full blown parental rights equal to that of a biological parent is reserved for situations when the claimant demonstrates by a preponderance of evidence that the claimant is committed to the child and the child's welfare.⁹

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To that end, what exactly demonstrates a familial relationship and a commitment to the child's welfare? It requires more than only being a casual friend or intimate partner to the child's parent,¹⁰ and it requires the claimant to have done more than simply provide a caretaking role for the child.¹¹ Because the law requires proof above and beyond these mere incidentals, the presumption adds to, rather than tramples, the constitutional right to parent one's own child.¹²Although there is no set magical number or sorts of public acknowledgments of paternity required,¹³ a claimant seeking to become a presumed parent must demonstrate that he or she holds out the child as his or her natural child.¹⁴

From the progeny of cases, a summary of potential factors to consider in determining...