In re Donovan L., Jr. Summary

 

Opinion published on February 11, 2016

 

Factual Background

 

In In re Donovan, the mother conceived after having an extramarital affair. The mother informed the biological father of the pregnancy but he took no interest until he met the child two years later and genetic tests showed that he was the father. The mother and child lived with the biological father for two weeks until a row between the mother and biological father resulted in the child being removed from that home. The juvenile court found that the mother's husband was the conclusively presumed father and awarded him custody. The biological father withdrew his request for presumed parenthood after the parties agreed to facilitate visitation.

 

Trial Court’s Decision

 

In a subsequent dependency action, the child was again placed with the mother's husband as the conclusively presumed father but the trial court ordered supervised visitation for the biological father pending disposition, noting that he could be a presumed parent and might be recognized as a third parent. The trial court later found that the biological father was a presumed parent under subdivision (d) of section 7611, and that under subdivision (c) of section 7612, the child would suffer detriment if the biological father was not recognized as a third parent.  The trial court reached its decision despite finding “no existing bond” between the biological father and child, but concluded that further visitation was needed “to develop a relationship.”

 

Decision on Appeal

 

The court of appeal reversed, holding that subdivision (c) of section 7612, only permits the recognition of a third parent if there is an “existing, rather than [a] potential” relationship.  The court of appeal held that “assum[ing] without deciding” that the two weeks that the child lived with the biological father was substantial evidence to support the finding of presumed parenthood, the biological father could not be recognized as a third parent because there was no existing relationship at the time of the disposition hearing.  The court of appeal affirmed in part and reversed in part.

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