Also known as:presumption of parentage · presumption of paternity · presumptions of paternity · paternity presumption · parentage presumption
Written by attorneys · grounded in primary & secondary sources — see below
A statutory rule that treats specified relationships or conduct as establishing legal parentage of a child. The rule attaches automatically when a person is married to the woman who gives birth and the child is born during the marriage or within three hundred days after termination, when the person resides with the child for the first two years and holds the child out as the person's own, or through other listed conduct. The presumption remains in force unless overcome by a court adjudication or a valid statutory denial of parentage.
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Uniform Acts
Restatements
Casebooks
How it applies
Common Examples
4
Challenge to Marital Presumption
Paul Peterson and Phoebe Park married in State A. Phoebe gave birth to a daughter during the marriage. Paul is listed on the birth certificate and the family health plan. Six months later a former partner obtains genetic testing showing a 99.9 percent probability he is the biological father and files an action to be declared the legal parent. The court treats Paul as the presumed parent and requires a full adjudication before any change in legal status can occur.
Holding-Out Presumption in Same-Sex Marriage
Perry Pratt and Pilar Pena are married. Perry gives birth to twins. Pilar resides with the children from birth, appears with them at school events, and lists them as dependents on her employer benefits. After the relationship ends Pilar stops providing support. The county seeks child support from Pilar, who claims no genetic tie. The court recognizes Pilar as a presumed parent based on her conduct and requires an adjudication to overcome that status.
Elisa B. v. Superior Court117 P.3d 660 (Cal. 2005)
Marital Presumption Against Later Biology Claim
Paige Porter is married to Pedro Pacheco when she gives birth. The couple lives together and Pedro is named on the birth certificate. Four years later a man who had a brief relationship with Paige obtains DNA results and petitions for parentage. The court holds that the marital presumption controls until a formal adjudication determines whether the presumption is overcome.
Michael H. v. Gerald D.491 U.S. 110 (1989)
Intent-Based Presumption in Surrogacy
Progressive Healthcare arranges a gestational surrogacy. Phoebe Park, the intended mother, and her spouse are parties to the agreement. The surrogate gives birth and the child is placed with the intended parents. A genetic donor later claims rights. The court applies the presumption arising from the intended parents' conduct and agreement, requiring adjudication to resolve any competing claim.
Johnson v. Calvert851 P.2d 776, cert. denied, 510 U.S. 874, and cert. dismissed sub nom. Baby Boy J. v. Johnson, 510 U.S. 938 (1993)
Common questions
Frequently Asked
5
Does proof of biology automatically displace a marital presumption of parentage?+
No. The presumption remains in effect until overcome by a court adjudication or a valid statutory denial of parentage. Genetic evidence may be presented in the adjudication but does not by itself terminate the presumed parent's status.
Supporting sources
When does the former-spouse presumption apply after divorce?+
The presumption attaches when the child is born not later than three hundred days after the marriage ends by divorce or death. The timing of the birth relative to termination of the marriage controls, regardless of separation or caregiving by another adult.
Can a presumed parent be challenged after the child reaches adulthood?+
A proceeding may be commenced after the child becomes an adult only if the child initiates it. An outsider who files after majority lacks standing unless the child also commences a parallel action.
Supporting sources
What standard governs resolution of competing parentage claims?+
The court adjudicates parentage in the best interest of the child after considering the length and quality of the existing relationship, the child's welfare, genetic evidence, and other enumerated factors.
Supporting sources
Does a legal separation end the marital presumption?+
No. Only a decree terminating the marriage ends the presumption window. Legal separation papers alone do not terminate the marriage, so a child born within three hundred days after death or divorce remains subject to the presumption.
Supporting sources
presumptions of parentage
, and rebuttal standards. Dissenting opinions Dissenting opinion Michael H. v. Gerald D., 491 U.S. 110, 124-25, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), rehearing denied, 492 U.S.…
and there is neither a court decree declaring
paternity
entered during Sanders's lifetime nor clear and convincing evidence that he had openly and notoriously held out Laurel as his child,…
in several circumstances, such as when the child is born during the marriage, § 40-11-5(A)(1), or when the man during the child’s minority “openly holds out the child as his natural child…
Family LawRights of unmarried cohabitants · Unmarried parents and their children: illegitimacyUBEFoundational