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Name: In re Raphael P.
Case #: A095206
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 04/15/2002
Subsequent History: Rev. denied 6/19/02

Family Code section 7611 provides conditions under which an individual may be deemed a presumed father. That presumption is a “rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.” (Family Code, §7612, subd. (a).) Appellant lived with the minor child’s mother off-and-on during her pregnancy, contributed support, was listed on the birth certificate and cared for the child after he was born. The child was removed from the mother and the trial court ordered a genetic test which excluded appellant as the biological father. The trial court denied appellant’s motion for presumed father status under Family Code section 7611 because the test excluding him as the biological father was clear and convincing evidence rebutting the presumption and referred the child for permanency planning. On March 14 the Court of Appeal affirmed the trial court judgment . Both appellant and the minor child (who had initially opposed appellant’s challenge to the trial court finding that he was not a presumed father) filed petitions for rehearing, (in which the minor child had changed his mind and supported appellant’s effort to establish a presumed father status) which the Court of Appeal granted, reversing the judgment of the trial court and it’s own affirmance. The Court of Appeal held that biological proof of non-paternity does not necessarily preclude presumed father status under Family Code section 7611 and where, as in this case, there is no one else competing for paternal status, this is not “an appropriate action” to rebut the presumption. The judgment was reversed and remanded for the trial court to determine anew appellant’s presumed father status.