Parentage Presumptions – Family Code 7540, 7555 and 7611

Before a court can order custody or support, it has to know who the legal parents are. California’s Uniform Parentage Act, beginning at California Code Family Code § 7600, answers that question with a set of presumptions.

The strongest is the marital presumption in California Code Family Code § 7540: a child born to a wife who is cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. The presumption can be challenged by genetic testing only within the time limits and by the persons the following section allows, and once that window closes it is conclusive.

Genetic testing creates a presumption of its own under California Code Family Code § 7555: when testing meets the statutory threshold, the tested person is presumed to be the parent, and the presumption can be rebutted only by clear and convincing evidence.

The third presumption, in California Code Family Code § 7611, does not depend on biology at all. A person who receives the child into his or her home and openly holds the child out as his or her own is a presumed parent. This is how a non-biological parent, including a stepparent or a same-sex partner, can establish parental rights, and it is also how a biological father who never lived with the child can lose them. When more than one presumption applies, the court weighs them and follows the one founded on weightier considerations of policy and logic.

Parentage cases have strict deadlines and procedural requirements, including an advisement of rights before parentage is admitted in a support case. Anyone facing one should get advice early.