If you are raising a child and wondering whether the law sees you as a parent, legal parentage is the answer to that question. In California, it is the law's recognition that a person is a child's parent, with rights and duties a court will enforce. It can exist without any genetic tie. It can also be missing even when there is one.
Most people facing this question are not asking in the abstract. A non-birth mother is wondering whether her name on the birth certificate is enough. Two fathers are separating and want to know where each of them stands. A couple who registered as domestic partners years before they could marry is trying to work out which date matters. Or someone who has raised a child from day one is hearing, for the first time, that "parent" might mean something narrower in court than it does at home. The rules below are the ones that decide those questions.
What Legal Parentage Means Under California Law
California's parentage rules live in the Uniform Parentage Act, the part of the Family Code that begins at section 7600. It sets out who counts as a child's parent and how that status is created, confirmed or challenged.
A legal parent is a person the law treats as the child's parent for every purpose. That status decides who owes child support, who can ask a court for custody or visitation as a parent, and who the child may inherit from. It is a legal status, not a biological fact.
The law uses a few related terms, and they are not interchangeable:
- A biological parent shares a genetic connection with the child. That connection alone does not make someone a legal parent. A sperm donor is the clearest example.
- A presumed parent is a person the law assumes is a parent because of certain facts, such as being married to the birth parent when the child was born. A presumption is a starting point the law adopts unless it is overcome.
- An alleged parent is someone who claims to be, or is claimed to be, a parent, but whose status has not yet been established by any of the routes the law recognizes.
For many same-sex and LGBTQ families, the gap between biology and legal status is the whole story. At least one parent is often not genetically related to the child. California law does not treat that as a defect. It provides several ways for a non-genetic parent to be a full legal parent.
California also allows, in limited cases, more than two legal parents. Under Family Code section 7612(c), added by SB 274 (Stats. 2013, ch. 564), a court may find that a child has more than two parents if recognizing only two would be detrimental to the child. That rule is covered in more detail below.
How Legal Parentage Is Established in California
There is no single doorway into legal parentage. California law recognizes several distinct routes, and a family may rely on more than one.
Routes to Legal Parentage at a Glance
The table below summarizes the routes described in this article. Each is explained in more detail in the sections that follow.
| Route to parentage | Key requirement | Genetic tie required? |
|---|---|---|
| Marital presumption (section 7611(a)) | Married to the birth mother, with the child born during the marriage or within 300 days after it ends | No |
| Registered domestic partnership (section 297.5(d)) | Registered domestic partner of the birth parent; the spousal presumption applies the same way | No |
| Holding-out presumption (section 7611(d)) | Receives the child into their home and openly holds out the child as their natural child | No |
| Voluntary declaration of parentage (section 7573) | Signed with the birth mother, notarized or witnessed, and filed with the Department of Child Support Services | Depends on the category: a genetic parent, or an intended parent under section 7613 |
| Assisted-reproduction consent (section 7613(a)) | Consent as the other intended parent, generally in writing and signed by both | No |
| Court judgment (section 7630) | A parentage action in which a court declares the relationship exists | No |
| Adoption | A court order of adoption | No |
1. Parentage presumptions. Certain facts, such as marriage to the birth parent or raising the child openly as one's own, create a presumption that a person is a parent. These presumptions are set out in Family Code section 7611 and are discussed in the next section.
2. Voluntary declaration of parentage. This is a signed written record that, once filed, generally carries the same weight as a court judgment. No lawsuit is needed.
3. Court judgment. A court can declare that a parent-child relationship exists, or does not, after someone files a parentage action. This is one route among several, not the only one.
4. Assisted-reproduction consent. Under Family Code section 7613(a), when a woman conceives through assisted reproduction using donated sperm, eggs or both from a donor who is not her spouse, a person who consents as the other intended parent "is treated in law as if that intended parent is the natural parent of a child thereby conceived." The consent is to be in writing, signed by both the intended parent and the woman conceiving. Nothing in the statute limits it to opposite-sex couples. If the consent was never put in writing, a court may still find consent if clear and convincing evidence shows that, before conception, the two had an oral agreement that both would be parents.
The same section explains when a donor is not a parent. A sperm donor who provides semen to a licensed physician or licensed sperm bank is generally treated as not a parent, unless the donor and the woman signed a written agreement before conception saying the donor would be one. The rules for at-home insemination and for known donors are different, and they are explained in our guide to known donor agreements and our overview of assisted reproduction and parentage.
5. Relinquishment and adoption. Adoption creates legal parentage by court order, and a child can be relinquished to an adoption agency. This firm does not take adoption matters, but the way adoption affects parental rights is explained in our article on adoption for same-sex couples.
Parentage Presumptions and Why They Matter for Same-Sex and LGBTQ Families
Family Code section 7611(a) says a person is presumed to be a child's parent if that person and the birth mother "are, or have been, married to each other and the child is born during the marriage," or within 300 days after the marriage ends. The statute does not depend on the sexes of the spouses. A wife whose wife gives birth during the marriage is a presumed parent in the same way a husband is.
A related and stronger rule appears in Family Code section 7540. Generally, the child of spouses who lived together at the time of conception and birth is conclusively presumed to be a child of the marriage. "Conclusive" means the presumption can be challenged only in the narrow ways the law allows.
Registered domestic partners. AB 205 (Stats. 2003, ch. 421) took effect on January 1, 2005. From that date, registered domestic partners have the rights and duties of spouses, whenever they registered. Family Code section 297.5(d) states that the rights and obligations of registered domestic partners "with respect to a child of either of them shall be the same as those of spouses." In practice, that means the presumption that applies to a spouse of the birth parent applies to a registered domestic partner as well.
The Proposition 8 period. In November 2008, California voters approved Proposition 8, providing that only marriage between a man and a woman is valid or recognized in California. California allowed no new same-sex marriages from November 2008 until after Hollingsworth v. Perry was decided on June 26, 2013. That case decided standing only: the U.S. Supreme Court held that the petitioners did not have standing to appeal the District Court's order, and it vacated and remanded the Ninth Circuit's judgment.
For families with children born in those years, registration matters. A couple who could not marry but were registered domestic partners when their child was born still had the benefit of section 297.5(d), so the spousal presumption applied to the non-birth partner. Many couples later married each other as well. Family Code section 299(e) treats the partnership and the marriage as two relationships, which a court can dissolve together in a single proceeding. When a family's history spans several relationship periods, that layering is often the first thing worth mapping, and it is part of the same-sex divorce process in California.
The holding-out presumption. Family Code section 7611(d) presumes a person is a parent if that person "receives the child into their home and openly holds out the child as their natural child." It does not require marriage, registration or a genetic tie. For a parent who was never married to or registered with the birth parent, it is often the presumption that does the work.
Competing presumptions. Two people can each have a presumption at the same time. Under Family Code section 7612(b), when presumptions conflict, or when a presumption conflicts with a claim by a genetic parent, "the presumption that on the facts is founded on the weightier considerations of policy and logic controls." Presumptions under section 7611 are generally rebuttable, which means they can be overcome, but section 7612(a) requires clear and convincing evidence to do it.
The Voluntary Declaration of Parentage
A voluntary declaration of parentage, sometimes called a VDP, is a signed record that establishes parentage without a court case. Under Family Code section 7573, two kinds of pairs may sign one:
- an unmarried woman who gave birth to the child and another person who is a genetic parent; or
- a married or unmarried woman who gave birth to the child and another person who is a parent under section 7613 of a child conceived through assisted reproduction.
The second category matters for many LGBTQ families. A non-genetic intended parent of a child conceived through assisted reproduction can sign alongside the birth mother, whether or not the two are married.
The signatures must be notarized or witnessed. The declaration generally takes effect when it is filed with the Department of Child Support Services. Once a completed declaration that complies with the law has been filed, section 7573(d) provides that it "is equivalent to a judgment of parentage of the child and confers on the declarant all rights and duties of a parent," subject to exceptions found in other sections of the Family Code.
Those exceptions include rules on rescinding a declaration and on challenging one later. The time windows and grounds are specific and set by statute, and the details are worth confirming against the current Family Code for any particular declaration. California courts also give full faith and credit to a voluntary declaration that is effective in another state, as long as it is in a signed record and complies with that state's law.
Under section 7612(e), a person's offer or refusal to sign a declaration may be considered in a later parentage case, but it is not decisive on its own.
When Parentage Is Disputed or Needs to Be Confirmed by a Court
A parentage action, still sometimes called a paternity action, is a court case that asks a judge to declare whether a parent-child relationship exists. Under Family Code section 7630, the child, the birth mother, a person presumed to be a parent through marriage, or a person claiming parentage under the assisted-reproduction rules may bring an action "at any time" to declare that the presumed or assisted-reproduction relationship exists. An action to declare that a marital presumption does not exist must be brought within a reasonable time after learning the relevant facts. For the holding-out presumption, any interested party may sue at any time.
The situations that commonly lead to court are fairly predictable. No declaration was ever signed. Two presumptions point to different people. Someone wants to rebut a presumption. Or parentage was never formalized and is now contested in a custody or support case.
Genetic evidence is part of the picture, but not the end of it. Section 7612(b) treats a genetic parent's claim as one more claim to be weighed against any presumption, with the weightier considerations of policy and logic controlling. A genetic link does not automatically displace a parent the law already presumes.
A judgment of parentage makes the person a legal parent with all the rights and duties that follow. Custody, visitation and support can then be addressed.
The court may also find more than two parents. Section 7612(c), from SB 274 (Stats. 2013, ch. 564), allows that finding when "recognizing only two parents would be detrimental to the child." In judging detriment, the court considers all relevant factors, including the harm of removing the child from a stable placement with a parent who has met the child's physical and emotional needs for a substantial period. A finding of detriment does not require that any parent be found unfit.
Legal Parentage, Custody, and Child Support in California
Parentage generally comes first, and custody and support follow. A person who is not a legal parent generally cannot ask a court for custody or visitation as a parent. California law does recognize a separate status for some non-parents who have taken on a parental role, but it is a different and narrower doctrine. For a non-biological parent whose status is uncertain at separation, that ordering is often the source of the most anxiety, and it is the focus of our guide for non-biological parents in divorce.
Support follows parentage as well. Family Code section 3900 gives a child's parents "an equal responsibility to support their child in the manner suitable to the child's circumstances." In a case where parentage has not been established, a court generally determines it before it can order a person to pay support as a parent.
A birth certificate is evidence, but it is not the same as a judgment. Section 7611(c) applies only when the presumed parent and the birth mother married, or attempted to marry, each other after the child's birth; when that is true, being named on the birth certificate with the presumed parent's consent is one of two facts (the other being a written or court-ordered support obligation) that can support the presumption. Like other presumptions under section 7611, it can be rebutted. A parent who is not named on the certificate may still be a legal parent through marriage, registration, holding out, assisted-reproduction consent or a voluntary declaration. Once parentage is settled, the custody questions are covered in our page on custody in LGBT divorce.
If You'd Like to Talk Through a Parentage Question
Parentage questions in LGBTQ families rarely turn on one fact. They turn on the order of things: when the child was conceived and born, whether there was a marriage, a registered partnership or both, what was signed with a clinic or a donor, and how each parent has lived with the child since. A consultation is the place to set those dates side by side and see which presumptions or documents apply, and where they might conflict. This practice handles California family law only and does not take adoption matters, so for anyone whose question is purely about an adoption, a different first call may be more useful.
To talk through how parentage affects your custody, support or divorce question, call LGBTDivorceLaw.com at (866) 343-4226 for a confidential consultation.