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Court of Appeal, First District, Division 4, California.

JOHN M., Petitioner, v. SUPERIOR COURT of the State of California, County of Marin, Respondent; SHERRY W., Real Party in Interest.

No. A039036.

Decided: June 17, 1988

Madeleine Simborg, Nancy C. DeMis, Diamond, Bennington & Simborg, Corte Madera, Bernard Wolf, Dowgialo & Wolf, San Francisco, for petitioner. Gail Connolly, Mill Valley, Richard Sherman, DeGoff and Sherman, Berkeley, James I. Cohen, San Rafael, for real party in interest.

Petitioner (John) challenges an order denying his motion to dismiss a paternity action against him and ordering him to submit to a blood test to determine paternity.   We hold that the order is correct and deny the petition.


On April 30, 1986, Sherry W., real party in interest herein, filed an action under the Uniform Parentage Act (Civil Code § 7000 et seq.) alleging that John is the natural father of her daughter Sabrina and asking for support.   She asked that John be ordered to take a blood test and submit the results to the court.   In a declaration supporting the action, Sherry stated that Sabrina was born while she was married to a man other than John.   Prior to Sabrina's second birthday, blood tests revealed that Sherry's husband, James, could not be the father.   The couple was divorced and the judgment of dissolution recited that James was not the father of Sabrina.   The declaration then stated that John had initially supported real party and Sabrina and had held himself out as Sabrina's father.

John opposed the action contending that it was barred by the conclusive presumption of section 621 of the Evidence Code.   Respondent court ordered a hearing on the question of whether John was estopped by his conduct to assert the defense of section 621;  it ruled that while he was not estopped to raise the defense, Sherry could nevertheless litigate the question of whether application of section 621 “is unreasonable, arbitrary, capricious and a denial of due process.”

Sherry raised the issue of the application of section 621 by a motion to require John to submit to blood testing.   He opposed the motion and moved to dismiss.   The court ruled in favor of Sherry, thus precipitating the instant petition.


In 1974, Sherry married James.   They had a daughter, Alexis, whose parentage is not in question.   In 1980, Sherry and John, who had been casual acquaintances for ten years, commenced a sexual affair.  (John was married at the time and had a family of three children.)   When Sherry discovered she was pregnant she told John but when he asked if he was the father, according to her testimony she told him that she really didn't know.

Sabrina was born on July 30, 1981.   Sherry and James separated nine months later because of Sherry's continued involvement with John.   James filed for dissolution and the resulting interlocutory judgment of dissolution incorporates a Marital Settlement Agreement in which the parties agree that James is not the natural father of Sabrina.   Sherry testified that this agreement was made because James had developed information that led him to believe that he was not Sabrina's father.   A 1974 blood test of James determined that his blood type was AB whereas a blood test of Sabrina dated August 5, 1981, determined her blood type to be O.1  The agreement was reached in a meeting between Sherry and James and their attorneys in August of 1983.   The judgment of dissolution did not provide for child support for Sabrina as it did for Alexis.

John and Sherry lived together with her daughters at various times after James and Sherry separated.   In October of 1983, John and Sherry commenced living together in a house that they selected together and John purchased.   Although John had intended to marry Sherry, this never occurred and in March of 1985 Sherry moved to Arizona.   John continued to assist her financially by sending her $2,750 per month until February of 1986.   Sherry filed the present paternity action a few months thereafter.


John now seeks to avoid submitting to blood tests and to defeat Sherry's paternity action against him by asserting the bar of the Evidence Code's conclusive presumption that Sabrina as the issue of Sherry who was cohabiting with her husband, James, is a child of that marriage.

Evidence Code section 621 provides in relevant part:

“(a) Except as provided in subdivision (b), the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.

“(b) Notwithstanding the provisions of subdivision (a), if the court finds that the conclusions of all the experts, as disclosed by the evidence based upon blood tests performed pursuant to Chapter 2 (commencing with Section 890) of Division 7 are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.

“(c) The notice of motion for blood tests under subdivision (b) may be raised by the husband not later than two years from the child's date of birth.

“(d) The notice of motion for blood tests under subdivision (b) may be raised by the mother of the child not later than two years from the child's date of birth if the child's biological father has filed an affidavit with the court acknowledging paternity of the child.”

Sherry cannot utilize subdivision (d) to avoid the conclusive presumption of section 621 since her petition to establish John's parentage was obviously not filed within two years of Sabrina's birth and did not include John's affidavit acknowledging paternity.   However, respondent court found that James had rebutted the presumption and reasoned that once the presumed father had established his nonpaternity, the conclusive presumption no longer existed and could not be relied upon by an alleged father.   The court also concluded, and we agree, that application of the conclusive presumption to this case would deny Sherry due process.   It is thus unnecessary for this court to determine the effect of the judgment of dissolution on the conclusive presumption of paternity.

In In re Lisa R. (1975) 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123, our Supreme Court, applying Stanley v. Illinois (1972) 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, adopted a balancing test for review of due process challenges to a conclusive presumption of paternity.   That test requires a case-by-case weighing of the state's interest in maintaining the presumption against the competing private interests in rebutting it.  (In re Lisa R., supra, 13 Cal.3d at pp. 648, 651, fn. 17, 119 Cal.Rptr. 475, 532 P.2d 123.)   In the Lisa R. case, Lisa, a two-year-old child, had been adjudged a dependent ward of the court.   Her mother was an alcoholic;  her mother's husband was a drug addict.  (Id., at p. 640, 119 Cal.Rptr. 475, 532 P.2d 123.)   Lisa lived with various foster parents.   At a status review when Lisa was five and both her mother and the presumed father were dead, a man claiming to be Lisa's biological father sought to prove that fact.   The trial court refused him permission due to the conclusive presumption that Lisa was the legitimate issue of the marriage of her mother and the presumed father.   In focusing first on the rights of the putative father, the court noted the type of relationship which the man had had with Lisa's mother, the fact that he had asserted his rights when he first discovered Lisa was a dependent ward of the court and the fact that he had no alternative remedy by which to protect his interests.   The court then enumerated the state's potential interests—accomplishing the purposes of the Juvenile Court Law, relieving a child of the stigma of illegitimacy, promoting marriage, speed and efficiency of judicial inquiry—and found that none of them outweighed the father's interests.

Our attention is called to two cases subsequent to In re Lisa R., in which the balancing test has resulted in application of the conclusive presumption.   In Estate of Cornelious (1984) 35 Cal.3d 461, 198 Cal.Rptr. 543, 674 P.2d 245, an adult claimed to be a decedent's illegitimate daughter and petitioned the trial court for appointment as administratrix of his estate.   The trial court applied the conclusive presumption and the Supreme Court affirmed.   The court held that the woman's interest in proving that decedent was her biological father did not outweigh the state's interest in preventing her from rebutting the presumption.   The woman's interest was solely her hope of gaining a right to inherit since there was no possibility of an ongoing relationship with the biological father.   On the other hand, the court viewed the state's interest as substantial since the policies promoted by the conclusive presumption of legitimacy were served by the application of the presumption.   The woman had been reared and supported by her presumed father who died thinking he was her natural father.  “Her equities are simply not in the same class as those of the fathers in Stanley and Lisa R.”  (Estate of Cornelious, supra, 35 Cal.3d at p. 467, 198 Cal.Rptr. 543, 674 P.2d 245.)

In Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 216 Cal.Rptr. 748, 703 P.2d 88, a child and her stepfather, Donald, brought an action seeking to prove that he was the child's biological father.   Michelle was born during her mother Judith's marriage to Ronald.   The marriage was dissolved when Michelle was five years old.   The issue of paternity was not raised and Ronald agreed to pay child support, and he regularly exercised visitation rights.   However, when Michelle was six, Judith married Donald and refused to allow Ronald to continue visiting Michelle.   About a year later, Donald and Michelle brought an action to establish Donald's paternity.   The trial court applied section 621 and held that Ronald was conclusively presumed to be Michelle's father.   The Supreme Court balanced the interests of Michelle and Donald against the state interests and concluded that the presumption should be applied.   First, the court noted that unlike the challengers in both Stanley and Lisa R., the putative father was not attempting to establish a legal relationship with a child who otherwise had no parents.   The court then ruled that Donald's interest was overruled by the social policies upholding the integrity of the family and protecting the child's welfare.  (Michelle W. v. Ronald W., supra, 39 Cal.3d at p. 362, 216 Cal.Rptr. 748, 703 P.2d 88.)   The court viewed the child's interest under the circumstances of the case before it as no greater than those of the putative father.2

The interest of real party in the case at hand is to establish the parentage of her child and to secure support from the biological father.   To that extent she represents the interests of Sabrina.  (See Perez v. Singh (1971) 21 Cal.App.3d 870, 872, 97 Cal.Rptr. 920.)   She could not realistically have moved to protect these interests by an action during the period or by the means provided to her by section 621.   Obviously, she could not have obtained an affidavit from the putative father, John, who is contesting his parentage.   She cooperated with her husband, James, to establish the biological parentage of Sabrina by recognizing in the Marital Settlement Agreement that James was not Sabrina's biological father.   The interest of Sherry and Sabrina in determining parentage and obtaining support is substantial;  contrasted therewith is the interest of John which unlike that of the putative fathers in the cases discussed above, is one of avoiding paternal responsibilities.

Nevertheless, it is the interest of the state that is to be balanced against the interests of those who challenge the conclusive presumption.   The most significant interest of the state in upholding the conclusive presumption is the integrity of the family.   This interest has been recognized even in the face of the death of the presumed father where that presumed father had a long-standing and firmly established relationship as in Estate of Cornelious, supra, 35 Cal.3d 461, 198 Cal.Rptr. 543, 674 P.2d 245.   That interest is much weaker in this case than in Cornelious or Michelle W.   The relationship of James and Sabrina was shortlived since, before Sabrina was two years old, James had filed for dissolution and during that proceeding had taken steps to refute the conclusive presumption of paternity.   Unlike the case of Michelle W., there is no presumed father ready to assume parental responsibilities.

The other significant state interest is protection of the child's welfare.  (Michelle W. v. Ronald W., supra, 39 Cal.3d at p. 362, 216 Cal.Rptr. 748, 703 P.2d 88).   In Michelle W., the court rejected the argument that the “stigma” of illegitimacy should be considered in view of the “Uniform Parentage Act” (Civ.Code, § 7000 et seq.) which abolished the concept of illegitimacy.  (39 Cal.3d at p. 362, fn. 5, 216 Cal.Rptr. 748, 703 P.2d 88)  The welfare of Sabrina could only be served by determining her biological father and obtaining support.   Without such a determination, she would either be left with no father or with further litigation to collaterally attack the determination of nonpaternity in the judgment dissolving the marriage of her mother and James.

We hold that the interests of Sherry and Sabrina in establishing biological parentage outweigh the interests of the state in enforcing the conclusive presumption.   It thus would be a denial of due process to preclude this action on the ground of the conclusive presumption.

The alternative writ is discharged and the petition is denied.


1.   John does not dispute Sherry's statement that these blood tests conclusively establish that it was impossible for James to be the father of Sabrina.

2.   The most recent case cited is also a case in which a putative father sought to establish his paternity.  (Michael H. v. Gerald D. (1987) 191 Cal.App.3d 995, 236 Cal.Rptr. 810.)   The child cross-complained to establish a legal or defacto/psychological parent-child relationship with either the presumed or the putative father.   The child had lived with both the presumed and the putative fathers but at the time of the appeal, the mother, presumed father and child were living together as a family.  (Id., at p. 1002, 236 Cal.Rptr. 810.)   The court held that the interest of the putative father was out-weighed by the interest of the state in upholding the integrity of the family.   The court also concluded that, given the facts of the case, the welfare of the child would be harmed, not protected, if she were permitted to rebut the conclusive presumption of legitimacy.   The United States Supreme Court granted review on February 29, 1988.

ANDERSON, Presiding Justice.

POCHÉ and CHANNELL, JJ., concur.