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Parental Presumption and Child Custody Laws

Dealing with family law statutes can be challenging, confusing, and emotional, particularly when you are fighting for the custody of a child. When the court approaches custody cases, it looks at a number of factors; but in general, two principles outweigh all others.

First of all, the court will look at what’s in the best interests of the child.

Secondly, there is a concept known as parental presumption that will supersede most other factors.

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What Is Parental Presumption?

In California, parental presumption means that custody should be granted to a fit biological parent rather than another person who may have a vested interest in the child. While this is a strong tenet of child custody cases, it is not the law; more of a guideline based upon years of legal precedents.

If a decision must be made between granting custody to a biological parent or someone else, the court will normally grant custody to the parent unless there is compelling evidence to do otherwise. (This is assuming that the parent is capable to act as guardian and willing to do so.)

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Determining Paternity

The first thing the court must establish when determining custody is who the parents actually are. In the case of the mother, she will be listed on the birth certificate, but this is not necessarily so for the father. There may be no father named, or it might be the incorrect father.

When establishing parentage, California family courts will look at the following factors:

  • Whether the man in question was wedded to the mother of the child at the time of conception or birth (or thought he was married to the mother, in cases when the marriage was later invalidated).
  • Whether the man married the mother subsequent to the child’s birth and has supported the child.
  • Whether the man has acted as if he were the legal father, under the concept known as "parentage by estoppel."

These cases can become quite complicated when the father is in question, resulting in the need for a DNA test to establish paternity.

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In Loco Parentis

Another common difficulty arises when someone who is not the parent, but who has been acting in the role of parent for a significant period of time (in loco parentis), is seeking custody against a biological parent. This could include stepparents, grandparents, adopted parents, or a legal guardian. The court will weigh all the different factors very carefully before ordering a child to leave the care of the only parent he or she has ever known.

It should also be noted that parental presumption does not apply to parents who have voluntarily given up their parental rights, or a parent previously deemed unfit. A biological parent who has relinquished his or her parental rights will likely need to prove to the court that he or she is now emotionally, financially, and morally fit to be a parent.

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Contact a Family Law Firm in the San Diego Area

If you are attempting to regain custody of your child, or an unfit parent is attempting to claim custody of a child you are currently caring for, you need an attorney who knows complex family law matters. Our firm has over 35 years of direct legal experience. We have won numerous awards and recognitions and have consistently helped clients in the San Diego, Del Mar, and La Jolla areas emerge from their family law cases victorious.

To schedule a free consultation, contact Huguenor Mattis, A.P.C., at (858) 458-9500.

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Additional Information

(858) 458-9500

Huguenor Mattis, A.P.C.
11455 El Camino Real, Suite 390
San Diego, California 92130
Office: (858) 458-9500
Fax: (858) 630-2341

Our Firm Services The Following California Areas:
San Diego, La Jolla, Del Mar, Carmel Valley, Rancho Santa Fe, Carlsbad, Encinitas, Solana Beach, Pacific Beach, and Mission Beach.

Certified family law specialist by the State Bar of California's Board of Legal Specialization.

Huguenor Mattis, A.P.C. is a San Diego, California firm practicing exclusively in the area of domestic relations law. We handle a wide range of matters including divorce, child custody, and child support. Whatever your situation we can be of assistance. Feel free to contact us today.

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