In an Adoption Proceeding When an Unwed Father Has Established that He is the Child’s Natural Parent, He Can Try to Show a Full Commitment to His Parental Responsibilities, Which Could Entitle Him to the Benefit of the “Detriment to the Child Standard”

Marci, who was married, and Mark had a child outside of Marci’s marriage. When the child was born, Marci immediately relinquished him to a couple for adoption. Mark then visited Marci shortly after the child was born. At that time Marci told Mark about the impending adoption of their child by the another couple. The adopting couple served Mark with notice for both adoption and alleged paternity. They additionally sought to terminate Mark’s parental rights and determine if Mark’s consent was necessary for the adoption to proceed. The Orange County family law court determined Mark to be the child’s biological father. The Father appealed. The Orange County family law court realized that Marci was married at the time the child was born. Thus her husband, was the child’s presumed father. Mark filed a petition to show cause for custody, visitation and paternity, and the adopting couple was joined.

The main issue was whether a unmarried father’s action to establish parental rights should have been an action to declare himself a natural father of a child who has a presumed father because the women’s legal husband is rebuttably presumed to be a child’s natural father.

Family Code section 7631 provides that except in cases where a child is born to a woman cohabitating with her husband, a man who is not a presumed father can bring an action to declare that he is the biological father of the child who has a presumed father under section 7611 if the mother relinquishes the child for adoption. The court in Adoption of Kelsey S. discussed the procedure to follow when an unwed father tries to assert his parental rights. In that case the trial court was directed on remand to determine if the unwed father “demonstrated a sufficient commitment to his parental responsibilities.”  From there, if the commitment is insufficient, the matter ends. However, if the court does find sufficient commitment it determines if the unwed father is “statutorily unfit” and as such can be deprived of his right to withhold adoption consent. A court’s finding of “unfitness” needs to be supported by clear and convincing evidence. An absence of such evidence allows an unwed father to withhold adoption consent. However even if the unwed father can withhold adoption consent, the court still has to independently determine custody.

Mark established that he was the natural father. As a result, he could try to prove that he demonstrated a full commitment to his parental responsibilities. If he can show that commitment, he was entitled to the “benefit of the detriment to the child” standard in Family Code section 3041. Had Mark been unable to show such commitment, he would have needed to prove that retaining his parental rights was in the child’s best interest, rather than the adoption. The Court of Appeal issued a writ of mandate telling the Orange County family law court to hold a hearing to address the adopting couple’s petition to terminate Mark’s parental rights. The first determination in that hearing would be taking evidence about whether Mark’s consent was required for the adoption. The Court of Appeal also dismissed Mark’s appeal of the Orange County family law court’s order as moot.

Adoption of Alexander M. (2001) 94 Cal.App.4th 430