Marie R. v. Charles K.

*626 Opinion

The case comes before the court on a settled statement on appeal in lieu of both the reporter’s and clerk’s transcripts.

Ronald K., a young attorney, and his wife Jill are petitioners for adoption of Marie R., a baby bom January 11, 1976. The baby’s mother is Sheila R. and both Sheila’s husband, Scott R., and respondent, Charles K., claim paternity.

Sheila and Scott were married January 8, 1976, three days before the birth of the baby, and the birth certificate lists Scott as the father. Immediately after birth, Sheila and Scott placed the baby with petitioners for adoption and the baby has lived with petitioners ever since she was two days old. Sheila and Scott do not now live together.

Over a year prior to the petition for adoption, Charles had filed a complaint to establish paternity. That action is still pending. Subsequent to the filing of the petition for adoption, petitioners filed and served on Charles a notice pursuant to Civil Code section 7017.

Sheila testified that she was not married to Charles and did not cohabit with him at the time of conception, and that Charles had not received the child into his family or into his home. The trial court decided…

I dissent.

I disagree with the majority’s view that the evidence fails to support the trial court’s finding that Charles K. was the natural father of the minor Marie R. The majority takes the view that Charles K. cannot take advantage of the provisions of Civil Code section 7004, subdivision (a)(4). It is the majority’s view that subdivision (a)(4), which provides that a man is presumed to be the natural father of a child if “[h]e receives the child into his home and openly holds out the child as his natural child,” requires that there be some contact with the child; otherwise, the failure of the man, who asserts he is the father, to physically receive the child into his home precludes the application of the rebuttable presumption set forth in Civil Code section 7004, subdivision (a)(4).

I

The Rebuttable Presumption of Fatherhood Created by Civil Code Section 7004, Subdivision (a)(4)

In view of what the California Supreme Court stated in In re Richard M. (1975) 14 Cal.3d 783 [ 122 Cal.Rptr. 531 , 537 P.2d 363 ], I cannot agree with the narrow interpretation placed upon Civil Code section 7004, subdivision (a)(4) by the majority opinion. I concede that former Civil Code section…

David Keene Leavitt for Claimants and Appellants.

Oliver W. Holmes, Jr., Bernie Fineman, Michael A. Aronoff and Richard J. Tuckerman for Claimant and Respondent.

OPINION

KINGSLEY, J.

The case comes before the court on a settled statement on appeal in lieu of both the reporter's and clerk's transcripts.

Ronald K., a young attorney, and his wife Jill are petitioners for adoption of Marie R., a baby born January 11, 1976. The baby's mother is Sheila R. and both Sheila's husband, Scott R., and respondent, Charles K., claim paternity.

Sheila and Scott were married January 8, 1976, three days before the birth of the baby, and the birth certificate lists Scott as the father. Immediately after birth, Sheila and Scott placed the baby with petitioners for adoption and the baby has lived with petitioners ever since she was two days old. Sheila and Scott do not now live together.

Over a year prior to the petition for adoption, Charles had filed a complaint to establish paternity. That action is still pending. Subsequent to the filing of the petition for adoption, petitioners filed and served on Charles a notice pursuant to Civil Code section 7017.

Sheila testified that she was not…