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Case of the Month Archive

March 2019

Alleged parent needed to explain his personal knowledge of mother’s cohabitation and marriage. . .


In reversal, Fourth District holds that trial court erred by issuing judgment of nonpaternity without ordering genetic testing and in reliance on Fam C §7540 marital presumption; alleged parent failed to present sufficient evidence of facts re cohabitation and existing marriage between child’s mother and her husband


County of Riverside v. Estabrook

(January 8, 2019)

California Court of Appeal 4 Civil E068516 (Div 2) 30 Cal.App.5 th 1144, 242 Cal.Rptr.3d 259, 2019 FA 1870, per Miller, J (Ramirez, PJ and Sough, J, concurring). Riverside County: Isaac, Temporary Judge, reversed. For appellant: Hirbod Rashidi, (951) 955-4236. For respondent: no appearance.


The Riverside County Dept. of Child Support Services (DCSS) filed a complaint against Michael Estabrook, alleging that he was the father of a child, J.L, whose mother was receiving public assistance. The complaint also sought orders for child support and payment of medical expenses. Estabrook filed a verified response, denying paternity and asserting that the mother’s husband, D.L., was J.L.’s presumed father because J.L. was born during their marriage. DCSS then filed a motion for judgment re paternity, child support, and health care expenses. Estabrook shot back a motion to join D.L. in the proceeding, along with a declaration from his attorney, stating that J.L. was conceived while D.L. was married to the child’s mother, and that D.L. was present at the child’s birth, signed the birth certificate, and was named as the child’s father on that certificate.


Estabrook then filed a request for a judgment of nonpaternity, supported by a declaration denying paternity and claiming that J.L. was born during the mother’s marriage to D.L., D.L. had held the child out as his, and the mother had stated that D.L. was the child’s father. In opposition, DCSS contended that only the mother and D.L. could assert the marital presumption, not Estabrook, and sought an order for Fam C §7551 genetic testing as a prerequisite for the trial court’s entry of a paternity judgment. Estabrook countered that genetic testing was not mandatory because D.L. was presumed to be J.L.’s father, negating paternity as an issue.


At a hearing, DCSS argued that genetic testing was mandatory upon its request, that there was no evidence to support the application of the marital presumption of paternity, and that only the mother or D.L. could assert the presumption. The Department also argued that the mother had listed Estabrook as J.L.’s biodad on her application for public assistance. The trial court reasoned that Estabrook did not have to raise the marital paternity presumption because it arose automatically since J.L. was conceived during marriage. DCSS countered that there was no evidence that D.L. and the child’s mother were married when the child was conceived, that Estabrook could not use the presumption as a defense to paying child support, and that genetic testing must be ordered when DCSS requested it. Estabrook averred that it was up to J.L.’s mother to rebut the presumption and reiterated his assertion that testing was not mandatory.


The trial court again stated that the marital presumption arose automatically because J.L. was born during marriage and noted that DCSS failed to show that the mother had an affair with Estabrook. The lower court also disagreed with DCSS’s contention that genetic testing was mandatory. The court then granted Estabrook’s motion for a judgment of nonpaternity and dismissed the case with prejudice.


DCSS appealed, and the Fourth District reversed.


It’s a must. . .
On appeal, the DCSS renewed its contention that genetic testing was mandatory upon request. The justices agreed. They noted that under Fam C §7551, genetic testing is mandatory in a civil proceeding in which paternity is a relevant fact, if a party or any person involved in the proceeding makes a timely motion for testing and the testing would be for the child, mother, and alleged father. The panel then focused on whether paternity if a relevant fact in this case. The justices first reviewed the federal statutes applicable to a parent who receives public assistance, noting that recipients must assign to the County any rights to child support that they have in order to receive benefits. Moreover, under state law, W&I C §11457, the noncustodial parent of a child whose custodial parent receives public assistance, must pay his or her child support payments directly to DCSS, not to the family. Here, the DCSS is attempting to collect child support from Estabrook, which it cannot do absent proof that he is J.L.’s biodad. And, Estabrook denied parentage and sought genetic testing, as did the DCSS. Summing up, the justices concluded that the necessary elements of Fam C §7551 have been met because this is a civil proceeding, paternity is a relevant factor, both Estabrook and the DCSS requested testing and the testing would be for J.L. and him. Therefore, the justices held, the trial court erred by failing to order genetic testing.


Daddy, they presume. . .
The County next contended that the lower court erred by permitting a nonspouse to assert the marital presumption and by applying the presumption when it was not supported by substantial evidence. The justices noted that the marital presumption of Fam C §7540 applies where there is substantial evidence that the child was conceived when the mother was married and cohabiting with her husband, who is neither impotent nor sterile, unless some exception applies. Here, the only proof before the trial court were the declarations of Estabrook and his attorney. Estabrook’s declaration stated that J.L. was born during marriage, the mother’s husband was holding J.L. out as his child, and the mother had stated that she was married to and living with her husband when J.L. was born. Estabrook’s attorney’s declaration stated that “‘[Husband]’” was married to J.L.’s mother when J.L. was conceived and born, was present at the birth, was named as the child’s father on the birth certificate, and signed the certificate, acknowledging that he is J.L.’s father. These declarations, the justices found, were not sufficient to support Estabrook’s claim that the marital presumption applied, because they failed to state how they acquired personal knowledge that their assertions were true, and Estabrook’s declaration failed to state to whom the mother made her statements, to whom she was married when J.L. was conceived, or her husband’s name. Accordingly, the justices concluded that the trial court erred by applying the marital presumption without substantial evidence. They reversed the lower court’s judgment.





The justices do not decide whether a non-spouse can assert the marital presumption as an affirmative defense in a child support case or in support of a request for a nonparternity judgment, since they decided that the presumption was applied erroneously here. That determination, however, makes us wonder what would be sufficient evidence and how an alleged biodad would go about getting it. Would it have been enough to file a new declaration, filling in the blanks as to whom the mother made her statements, to whom she was married, and her husband’s name? Perhaps it would help to file a declaration from the person to whom she made her statements verifying that he or she actually heard them. It’s more likely that the genetic testing which will now take place will clear up the paternity and support issues.



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