In County of Orange v. Cole (August 15, 2017)
In affirmance, Fourth District holds that sperm donor whose paternity cannot be established under Fam C §7613 may still be a presumed father under Fam C §7611(d) and be ordered to pay child support.
Facts of the case
In 2005, Brian and Mie begin a sexual relationship after knowing each other since 1991. At this time, Mie knew Brian had been married, but thought Brian and his wife had separated. they decide together that they want to raise a child, so Brian extracts his sperm via surgical procedure, and Mie undergoes vitro fertilization using his sperm. Brian is present for the baby’s birth, is credited with naming the him. After this, Brian spends two or so nights a week at the house with Mie and the other nights out presumably with his job as an airline pilot.
This entire time however, Brian is still married to his wife and living at home with her and his two kids the days he is not with Mie and their new child. During this time of living two lives, Brian calls himself the baby’s father to Mie’s friends and family, he does not object to the child calling him, “daddy”, and also financially assists Mie with various expenses. Of course, Brian does not bring the new child over to his house which he shares with his wife and kids, and fails to ever mention his existence to them. In 2010, after two and a half years of living two lives, Brian tells Mie he is cutting off all contact with her and will no longer assist in raising their child.
Rulings of the case:
In August of 2014, the County of Orange files a petition seeking a paternity judgement against Brian, and an order for child support. Brian denies being the boy’s father, but the trial court had found that hard to believe. They noted he clearly discussed fathering a child with Mie, had even undergone a surgical procedure to do so, and had extensively supported Mie and the child, either physically or emotionally, during their affair. The trial court also found that during this time Brian showed various examples of qualifying himself as the the boy’s presumed father under Fam C §7611(d), and ordered him to pay child support. He appealed, but the Fourth District affirmed.
The justices noted that trial courts may consider many factors when determining if a man has received a child into his home which would qualify him under that Fam C §7611(d) act, and stated that one of those was the man providing financial support for the child. The the extent that brian had to go in order to have this child, a surgical procedure in place of standard pro creation methods, highlights his desire and willingness to be this boy’s father under Fam C §7611(d). They also noted “that statute doesn’t require the presumed father to hold out the child as his own in every situation, and does not protect fathers who lead double lives” (King).
Brian attempted to oppose this with stating his case shouldn’t be seen in light of Fam C §7611(d), but instead Fam §7613, because Fam C §7613 precluded a sperm donor from being treated as the natural parent of the child conceived. The courts disagreed, saying that since he showed behavior which constituted him as the presumed father under Fam C §7611(d), regardless of the findings from Fam §7613. Finally, Brian was ordered child support for the child between him and Mie.
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Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) 4:7.1
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