Obtaining Custody of a Non-Biological Child 44

A party may still obtain custody of a child or visitation with a child that he/she is not biologically related to if that party qualifies as a “Presumed Parent ” under California Family Code section 7611. This code section requires that the party seeking presumed parent status (1) has taken the child into his/her home and (2) openly held the child out has his/her own.

To satisy the first requirement, the party seeking presumed parent status must have physically taken the child into his home. There is no hard and fast rule (known as a “bright line rule” in law) on how many times the child was in the party’s home or for what length of time. Each determination will be made by the court on a case by case basis.

However, the court will take into consideration whether the party’s efforts to take the child into his/her home were thwarted by the other parent. In one example, the court awarded a man presumed parent status where he attempted several times to bring the child into his home, but the mother always refused his requests.

To satisfy the second requirement, a party must openly hold the child out as his/her own. For example, sending out birth announcements, referring to the child as “son” or “daughter” to others, and including the child in a will or other estate planning documents.

The determination of presumed parent is very fact intensive so be prepared to provide detailed evidence to the court.

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