Comino v. Kelley
25 Cal. App. 4th 678, 30 Cal. Rptr. 728, 30 Cal. Rptr. 2d 728 (1994)
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Rule of Law:
The conclusive presumption that a child born to a married woman cohabiting with her husband is a child of the marriage will not be applied when the underlying policies of the presumption—preserving the integrity of the family unit and ensuring child support—are not furthered by its application.
Facts:
- In July 1987, Stephanie Kelley and Jeffrey Moyer entered into a marriage of convenience for mutual economic and military benefits, but did not have a sexual relationship and dated other people.
- While married to and living as a roommate with Moyer, Kelley became sexually involved with Paul Comino and became pregnant in April 1988.
- Kelley told Comino he was the father, and shortly before the birth, she moved into Comino's home.
- When the child, Joshua, was born, Comino was present, cut the umbilical cord, was listed as the father on the birth certificate with Kelley's consent, and the child was given Comino's last name.
- For the next two and a half years, Comino, Kelley, and Joshua lived together as a family unit, with Comino providing financial support and care for the child.
- Kelley sent birth announcements and photographs to Comino's family and friends, identifying Comino as the father.
- In April 1991, Kelley moved out of Comino's home, moved in with Moyer, and told Comino for the first time that he might not be the biological father, threatening to restrict his access to Joshua.
Procedural Posture:
- Paul Comino filed an action in trial court against Stephanie Kelley and Jeffrey Moyer to establish a parental relationship with the child, Joshua.
- The trial court granted Comino's request for temporary joint legal and physical custody.
- In her answer, Kelley asserted that Moyer, her husband, was the father as a matter of law based on the marital presumption.
- The trial court denied Kelley's motion to compel Comino to submit to a paternity blood test.
- After a two-day trial, the trial court entered a judgment declaring Comino to be Joshua's father.
- Stephanie Kelley, as appellant, appealed the trial court's judgment to the Court of Appeal.
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Issue:
Does the conclusive legal presumption that a child born to a married woman cohabiting with her husband is a child of the marriage apply where the marriage was one of convenience, the husband and wife never functioned as a family unit with the child, and another man has held the child out as his own since birth?
Opinions:
Majority - Sonenshine, J.
No. The conclusive paternity presumption of Evidence Code former section 621 should not be applied when its underlying policies are not furthered. The court reasoned that the policies for the presumption are to preserve the integrity of the family unit, protect children from the stigma of illegitimacy, and promote private child support. Here, there was no family unit between Kelley, Moyer, and the child to preserve, as their marriage was one of convenience and they never lived together as a family with Joshua. Furthermore, the state's interest in ensuring the child has a father and a source of support is better served by avoiding the presumption and recognizing Comino, the only father the child has ever known and the man who seeks to take responsibility for him. Applying the presumption would create an absurd result by relying on a fiction to establish a legal fact known to be untrue in order to protect policies that do not exist in this case. The court also found that Comino qualified as a presumed father under Civil Code former section 7004 because he received the child into his home and openly held the child out as his own, and Kelley failed to rebut this presumption with evidence.
Analysis:
This decision exemplifies a judicial trend of looking beyond the rigid application of legal fictions, like 'conclusive' presumptions, to achieve outcomes consistent with public policy and the best interests of the child. The court established that even a powerful statutory presumption can be set aside if its application would lead to an absurd result that undermines its own legislative purpose. This case strengthens the legal status of a 'de facto' or 'psychological' parent who has formed a substantial parent-child bond, prioritizing that existing relationship over a biological or legal relationship that exists only on paper. It signals to lower courts that they have the discretion to weigh the equities and realities of a family situation, rather than being bound by outdated presumptions that do not fit modern family structures.
