Credit:  Michael Dwyer Associated Press

Credit: Michael Dwyer Associated Press

According to the New York Times, associates of one time senator and Presidential candidate John Edwards say that he is considering declaring he is the father of Rielle Hunter’s 19 month-old daughter Frances.  This is contrary to his prior position where he flatly denied it was not possible on a prior television appearance.  The situation has given rise to a political controversy further compounded by grand jury testimony of Ms. Hunter.  Prosecutors are grappling with whether payments to a Presidential candidate’s mistress to ensure her silence are considered campaign donations and should be reported.

On the family law side, when it comes to using a DNA test to establish a “conclusive presumption” that John Edwards is the father of Frances, I am very curious as to why Ms. Hunter hasn’t initiated a paternity action in the family courts.  This could simply be a matter of politics.  In California, the courts make distinctions between biological parents (established by DNA) and presumed parents.  Since this is a blog and not a treatise I can’t explain what being a “presumed parent” means in a few sentences.  However, as a San Francisco Family Law Attorney, I can offer that in California, the courts often balance whether there is a marital family unit that needs to be protected meaning is there an existing “parent-child relationship between the child and the presumed parent” that should not be disturbed.

Cases have occurred where a Father by DNA is declared to be a biological parent, but is not a presumed parent because it was concluded that the child had established an emotional and financial relationship with someone other than the biological parent.  For this reason it is important for a biological parent to assert his paternity rights if they are in question immediately before the child emotionally and financially bonds with a person other than the biological parent.

The interesting issue with John Edwards is the possible legal effect of making payments (if proven to be true) out of campaign donations to support this child.  If there was a written promise to furnish support for Frances one must indeed wonder whether this impliedly means he has received the child into his home but so far he has not held the child out as his own in public.  For further answers to this complex area of the law, e-mail me.

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