The Evidence Code Section 621 Presumption of Paternity Does Not Automatically Apply to Every Paternity Case

Stephanie met Jeffrey in May 1987. They married in August, but referred to the marriage as a “business relationship.” They did not have a sexual relationship, and each dated other people. Among others that Stephanie dated included Paul, the punitive father here. In April 1988, Stephanie and Paul were sexually involved and she became pregnant. Paul was present at the child’s birth in December 1988 and was listed as the father in the birth certificate. Over the next two and a half years Stephanie, Paul and their child lived together. Stephanie then moved out in April 1991 and moved in with Jeffrey. At that point she told Paul that she was not certain that he was the child’s biological father. She threatened to restrict Paul’s access to the child. Paul then filed an action against Stephanie and Jeffrey to establish a parental relationship. Jeffrey denied paternity in his answer, but Stephanie asserted Jeffrey’s paternity in her own answer as a matter of law, based on their marriage and cohabitation. She denied having sexual relations with Paul. The trial court found Paul to be the child’s father, and ordered him to pay child support, and continued joint physical and legal child custody of the child. Stephanie appealed.

Is a court always required to apply the conclusive presumption of Evidence Code section 621 to establish paternity? Section 621 provides as a matter of law that the child of a wife who is living with her husband is conclusively presumed to be a child of the marriage, unless the husband is physically unable to have children.

However, in County of Orange v. Leslie B. the court refused to apply the Evidence Code section 621 standard because it did not further its underlying policies. In Leslie B. blood tests conclusively showed that one man, who was the mother’s husband, was not the father. Blood tests also showed that the other man was the father, though he was not the husband. The Orange County family law court concluded that the non-husband was the father and the mother appealed. She argued that the presumption in section 621 conclusively applied. The Orange County family law court rejected this argument because applying the presumption would not serve the policy underlying it. There was no marriage or family unit to preserve here, the child knew the non-husband to be his father, and the state had an interest in ensuring child support from the non-husband. He wanted to assume the responsibility of a parent, whereas the husband did not. Thus the Orange County family law court properly chose to not apply section 621.

The present case is very similar to Leslie B. because the policy underlying the section 621 presumption is not served by applying it. The Orange County family law court determined that Paul was the child’s presumed father, but not based on section 621. It instead relied on section 7004, which creates a presumption of paternity when a man “receives the child into his home and openly holds out the child as his natural child.” Paul did just that for two and a half years. Paul did not need to present evidence of biological paternity because the statute creates a presumption that the opposing party must instead rebut.

Comino v. Kelley (1994) 25 Cal.App.4th 678