Filed 11/13/18
                              CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                             (Placer)
                                               ----

C.A.,                                                                 C084473

                 Plaintiff and Respondent,                 (Super. Ct. No. SDR0049126)

        v.

C.P. et al.,

                 Defendants and Appellants.

      APPEAL from a judgment of the Superior Court of Placer County, Suzanne
Gazzaniga, Judge. Affirmed.

      Law Office of Stephanie J. Finelli and Stephanie J. Finelli for Defendants and
Appellants.

        Forester Purcell Stowell and Matthew K. Purcell for Plaintiff and Respondent.

        This case involves a little girl bonded to and loved by each of her three parents.
        The wife in a married couple (defendants C.P. and J.P., wife and husband)
conceived the child with a coworker (plaintiff C.A.), but hid that fact from wife’s

                                                1
employer and--initially--from husband. The marriage remains intact and wife and
husband parent the child. For the first three years of the child’s life, the couple allowed
plaintiff to act in an alternate parenting role, and the child bonded with him and his close
relatives. Defendants excluded plaintiff from the child’s life when he filed the instant
petition seeking legal confirmation of his paternal rights. The trial court found that wife
misled the court at an interim custody hearing, prolonging what the court later viewed as
an unwarranted separation. Despite this period of separation, the court found the child
was still bonded to all three parents and found this to be a “rare” case where, pursuant to
statutory authority, each of three parents should be legally recognized as such, to prevent
detriment to their child. Defendants appeal. We shall affirm.
                                     BACKGROUND
       The child was born in July 2012 to wife, who was then and remains married to
husband. In November 2015, plaintiff filed the instant petition to confirm his relationship
with the child, change her name, and obtain paternity testing. After an interim order for
paternity testing, a court trial was held, after which the trial court granted plaintiff some
of the relief he sought.
       Defendants do not explicitly attack the sufficiency of the evidence, the key facts
were not disputed, and the trial court did not find defendants credible on some key points.
In particular, the trial court faulted wife for her “misleading portrayal” that minimized
plaintiff’s involvement in the child’s life at an earlier hearing.1 The minimization led the
court to deny plaintiff’s request for temporary visitation orders, a request that it otherwise
would have found appropriate. But the court found plaintiff’s involuntary separation
from the child due to “lack of candor” by wife did not break the strong bond defendants
had allowed plaintiff to develop with the child.

1 The settled statement does not describe wife’s misrepresentations, and the trial court’s
written ruling does not provide further details of how she misled the court.

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       Defendants never questioned plaintiff’s status as the child’s biological father, a
fact each defendant had known before the child was born. Wife led plaintiff to believe
she was separated but continued to cohabit with husband without plaintiff’s knowledge.
Plaintiff and wife were coworkers, and wife wanted to ensure other coworkers did not
find out about the affair, which caused plaintiff to refrain from seeking paternity leave
from their employer. Plaintiff was involved with the child’s early medical evaluations
and treatment, openly held her out as his daughter, received her into his home, paid child
support, and had regular visitation until defendants cut him off after he filed the instant
petition. Plaintiff’s close relatives (sister, nieces, and mother) also developed
relationships with the child. Plaintiff had thought the child bore his last name until he
saw a prescription bottle showing otherwise, when the child was about eight or nine
months old.
       Plaintiff had regular overnight parenting that increased over time to every other
weekend, and saw the child “from time to time” during the week, from when the child
was about seven months old until late in 2015, when this petition was filed.
       When the child was about 18 months old, all parties participated in autism
screening and therapy for her. Neither defendant refused plaintiff’s informal child
support payments, set in an amount determined by wife. Plaintiff only stopped paying
when defendants refused to let him continue to see the child. Plaintiff respected the
marriage and wanted to co-exist with husband; in turn, husband was committed to
maintaining his marriage and conceded that if the roles were reversed he would want to
be recognized as a third parent.
       The trial court found “no doubt” the child was “well bonded to [plaintiff] and his
extended family” and that “he has established a strong, long and enduring bond with” her
that defendants had allowed to form. Plaintiff and husband were each found to be a
presumed father of the child. Weighing the two presumptions, the court found it
appropriate to recognize all three adults as parents, otherwise the child would suffer

                                              3
detriment. The judgment declares that the child has three parents who shall share
custody, with mediation to resolve any conflicts, and also adds plaintiff’s last name to the
child’s existing set of names, though not as her last name.
       Defendants timely appealed. We denied their interim petition for writ of
supersedeas, but granted their request for calendar preference.
                                        DISCUSSION
       Defendants head four different claims in their opening brief. The root of all their
claims is that the trial court erred in finding that plaintiff was a third parent.
       We first explain that we presume the trial court’s findings are supported by the
evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Although
defendants purport to raise purely legal issues, “legal issues arise out of facts, and a party
cannot ignore the facts in order to raise an academic legal argument.” (Western
Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291.) “[I]n addressing
[their] issues we will not be drawn onto inaccurate factual ground.” (Ibid.)
                                                I
                                    Three-Parent Finding
       Defendants primarily contend the trial court should not have found plaintiff was a
third parent under the relevant statutes, and make the subsidiary claims that such a
finding interferes with the state’s interest in preserving the institution of marriage and
impinges on their parental rights. As we explain, we disagree.
       A. Preface
       We begin with the observation that defendants repeatedly rest their arguments on
an inaccurate premise, that because by statute husband is conclusively presumed to be the
child’s father, the child cannot have more than one father. In other words, they interpret
the “conclusive” presumption to be an “exclusive” presumption, the application of which
precludes the operation of any other presumptions of parenting. This view does not
comport with the statutory scheme or extant precedent.

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       Centuries ago, noted legal reformer William Murray, Earl of Mansfield,
referenced a rule that spouses could not give evidence that a child born during the
marriage was not born of the marriage. (Goodright v. Moss (K.B. 1777) 2 Cowp. [vol. 2]
591, 592 [98 Eng.Rep. 1257] [“the law of England is clear, that the declarations of a
father or mother, cannot be admitted to bastardize the issue born after marriage”]; see
Black’s Law Dict. (10th ed. 2014) Lord Mansfield’s rule, p. 1086.) This generally meant
the child was conclusively presumed to be the husband’s child; the rule and its accreted
corollaries and exceptions ensured a child would be deemed “legitimate” for various
largely antiquated reasons. (See Estate of Mills (1902) 137 Cal. 298, 301-304; Michael
H. v. Gerald D. (1989) 491 U.S. 110, 124 [105 L.Ed.2d 91, 107] [“The presumption of
legitimacy was a fundamental principle of the common law”]; Jaen v. Sessions (2d Cir.
2018) 899 F.3d 182, 188; 10 Witkin, Summary of Cal. Law (11th ed. 2017) Parent and
Child, Evidence of Marriage, §§ 5, 15-20, pp. 35-36, 46-53; 1 Bishop, New
Commentaries on Marriage, Divorce, and Separation (2d ed. 1891) The Marriage
Disclosed in the Proofs of Pedigree and Legitimacy, §§ 1167-1182, pp. 503-509
[describing development of the rule and some exceptions]; Annot., Who May Dispute
Presumption of Legitimacy of Child Conceived or Born During Wedlock (1979) 90
A.L.R.3d 1032, § 2(a); Elrod, Child Custody Prac. & Proc. (Mar. 2018 update) Historical
Perspective, § 1:3 [the presumption “was one of the strongest presumptions known to the
law” and was strengthened via Lord Mansfield’s rule].) The presumption sets out a
substantive legal rule in California. (See Kusior v. Silver (1960) 54 Cal.2d 603, 619;
Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1203-1204 (Brian C.).)
       “The Legislature . . . used this conclusive presumption fiction for three public
policy reasons, namely, (1) preservation of the integrity of the family; (2) protection of
the innocent child from the social stigma of illegitimacy; and (3) a desire to have an
individual rather than the state assume the financial burden of supporting the child.”

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(In re Marriage of B. (1981) 124 Cal.App.3d 524, 529-530.) Thus, although originating
in ancient social contexts, valid reasons for the rule remain.
        The presumption continues in California today: “Except as provided in Section
7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is
conclusively presumed to be a child of the marriage.” (Fam. Code, § 7540.)2 In turn,
section 7541 allows blood tests to be used to rebut the presumption, provided the husband
or presumed father moves for testing within two years of the child’s birth. (§ 7541, subd.
(b).)
        “The law concerning children born to married women when there is a dispute over
paternity is a latter-day admixture of ancient common law presumptions and ideas,
statutes, statutory interpretation and legislative acquiescence, common law accretion and
constitutional imperatives, all in the face of the technological ability, developed only
recently, to positively identify who a biological father really is.” (Brian C., supra, 77
Cal.App.4th at pp. 1202-1203.) Since then, the Legislature has responded to new
scientific advances and new ways people now choose to form relationships. But the legal
changes express a consistent desire to preserve stability for the innocent children who
have no control over what their various parents have chosen to do with their lives. (See,
e.g., id. at pp. 1209, 1219; Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 239-240
(Rodney F.) [purported biological father with no relationship with a child born of a
married couple could not overcome presumption husband was the father and upset
constitutionally protected family]; In re Marriage v. Freeman (1996) 45 Cal.App.4th
1437, 1444-1447.)
        But husband here is not trying to avoid being labeled as a father in this case. He is
not trying to evade the force of the conclusive presumption, such as to avoid child

2   Further undesignated statutory references are to the Family Code.

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support liability (cf., e.g., In re Marriage of B., supra, 124 Cal.App.3d 524), and the
judgment recognizes that he is a father to the child. Instead, defendants are trying to
prevent plaintiff--the biological father--from also being treated as a father to the child.
That is a critical difference under the statutory scheme, as we next explain.
       B. Application of the Statute
       As stated, there is no dispute that husband is presumed to be at least a father of the
child under section 7540. Plaintiff is also presumed to be a father, under section 7611,
subdivision (d), which provides that a person “is presumed to be the natural parent” if the
“presumed parent receives the child into his or her home and openly holds out the child
as his or her natural child.” Defendants do not challenge the sufficiency of the evidence
showing that plaintiff has satisfied this statute. Therefore, they cannot deny that plaintiff
is a presumed father under this statute. The question is whether he can be deemed a third
parent, as the trial court deemed him.
       The pertinent bill (Sen. Bill No. 274 (2013-2014 Reg. Sess.)) included a statement
of legislative intent as follows:

              “(a) Most children have two parents, but in rare cases, children have more
       than two people who are that child’s parent in every way. Separating a child from
       a parent has a devastating psychological and emotional impact on the child, and
       courts must have the power to protect children from this harm.

              “(b) The purpose of this bill is to abrogate In re M.C. (2011) 195
       Cal.App.4th 197 insofar as it held that where there are more than two people who
       have a claim to parentage under the Uniform Parentage Act, courts are prohibited
       from recognizing more than two of these people as the parents of a child,
       regardless of the circumstances.

              “(c) This bill does not change any of the requirements for establishing a
       claim to parentage under the Uniform Parentage Act. It only clarifies that where
       more than two people have claims to parentage, the court may, if it would
       otherwise be detrimental to the child, recognize that the child has more than two
       parents.

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              “(d) It is the intent of the Legislature that this bill will only apply in the
       rare case where a child truly has more than two parents, and a finding that a child
       has more than two parents is necessary to protect the child from the detriment of
       being separated from one of his or her parents.” (Stats. 2013, ch. 564, § 1.)
       To advance the public policy reflected by these explicit legislative findings,
section 7612, subdivision (c) now provides as follows:

              “In an appropriate action, a court may find that more than two persons with
       a claim to parentage under this division are parents if the court finds that
       recognizing only two parents would be detrimental to the child. In determining
       detriment to the child, the court shall consider all relevant factors, including, but
       not limited to, the harm of removing the child from a stable placement with a
       parent who has fulfilled the child’s physical needs and the child’s psychological
       needs for care and affection, and who has assumed that role for a substantial
       period of time. A finding of detriment to the child does not require a finding of
       unfitness of any of the parents or persons with a claim to parentage.”
       Defendants contend plaintiff lacked standing to bring this case because he could
not rebut the conclusive presumption that husband was the child’s father. We disagree.
The “division” referred to by the quoted subdivision (“a claim to parentage under this
division”) is division 12 of the Family Code, which governs parent and child
relationships. It begins with section 7500 and ends with section 7962. Therefore, both
defendant husband (by virtue of section 7540) and plaintiff (by virtue of section 7611,
subd. (d)) have “a claim to parentage under this division” as provided by section 7612,
subdivision (c). Under section 7630, subdivision (b), “[a]ny interested party may bring
an action at any time” (italics added) to determine the existence, if any, of a parental
relationship under section 7611, subdivision (d). Thus, plaintiff had statutory authority to
bring this action. (See J.R. v. D.P. (2012) 212 Cal.App.4th 374, 384; Kevin Q. v. Lauren
W. (2009) 175 Cal.App.4th 1119, 1133 [“There are no time limits or standing
requirements for challenging, or asserting, a section 7611, subdivision (d)
presumption”].)
       The fact that defendant husband’s claim to parentage arises from a conclusive
statutory presumption (§ 7540) and plaintiff’s claim arises from a rebuttable statutory

                                              8
presumption (§ 7611, subd. (d)), does not change the fact that each man has a claim that
arises “under” division 12 of the Family Code. (See Brian C., supra, 77 Cal.App.4th at
pp. 1219-1221 [in part (at p. 1220) rejecting the “ludicrous result that a man could fit
within a statutory category of presumed fatherhood and still not have standing to
establish paternity”]; Miller v. Miller (1998) 64 Cal.App.4th 111, 116-117 [§ 7630, subd.
(b) gave standing to seek paternity to a man who claimed parentage based on § 7611,
subd. (d), notwithstanding the existence of a conclusively presumed father under § 7540];
see also Craig L. v. Sandy S. (2004) 125 Cal.App.4th 36, 43 [couple could have excluded
purported biological father, but because they “allegedly permitted the biological father to
receive the child into his home and hold him out as his child, the biological father may
assert the rebuttable presumption provided by section 7611, subdivision (d)”] (Craig L.).)
       Defendants point to statements in part of the legislative history to argue the three-
parent statute was not meant to be applied where a stable marriage exists. But the
relevant report explains that “cases involving more than two parents are, almost by
definition, complicated and will require courts to balance many competing interests” and
the bill allows a three-parent result “in very narrow situation when necessary to prevent
detriment to the child.” (Assem. Com. on Jud., Rep. on Sen. Bill No. 274 (2013-2014
Reg. Sess.) as amended May 14, 2013, p. 6.) The report notes, consistent with the statute,
that the bill requires a showing of detriment to the child and that the court must act in
“the child’s best interest, including the need for stability” before making a three-parent
order. (Id. at p. 7.) If the Legislature wanted to limit the bill’s application to cases where
no stable marriage existed, it easily could have said so. Instead, it directed courts to
consider “all relevant factors.” (§ 7612, subd. (c).) We may not insert into a statute
words that are not there. (See Trackman v. Kenney (2010) 187 Cal.App.4th 175, 184-
185.) “If the Legislature has provided an express definition, we must take it as we find it.
[Citation.]” (Adoption of Kelsey S. (1992) 1 Cal.4th 819, 826.)

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       Defendants point to Rodney F., supra, 61 Cal.App.4th 233 in support of their
claim plaintiff lacked any standing once (in their view) the conclusive presumption that
husband was the child’s father became unrebuttable after two years. But Rodney F. is
factually distinguishable. That case involved a purported biological father of the child
born of a marriage who had no contact with the child. He did not claim to have held the
child out as his own (cf. § 7611, subd. (d)). (Rodney F., at p. 236.) In those
circumstances, the appellate court held the conclusive presumption could not be rebutted,
as the claimant was not a presumed father under section 7611. (Rodney F., at pp. 238-
239.) Here, as just explained, plaintiff is a presumed father because he claimed (and
thereafter proved) that he received the child into his home and held her out as his own,
thereby conferring standing to press his “claim to parentage” under section 7612,
subdivision (c).
       In re Donovan L. (2016) 244 Cal.App.4th 1075 is instructive. There, the appellate
court acknowledged the conclusive presumption in favor of the husband, but then
proceeded to examine the then-new three-parent statute, something it would have no
reason to do if--as defendants in this case assert--such inquiry was rendered unnecessary
by the conclusive presumption. (Id. at pp 1086-1094; see also In re M.Z. (2016) 5
Cal.App.5th 53, 64-66.) Ultimately, Donovan L. concluded it was not appropriate to find
the child had three parents because the biological father in that case lacked a parent-child
relationship with the child. (Donovan L., at pp. 1092-1094.) For that reason, the
appellate court found the husband’s conclusive presumption defeated the biological
father’s claim to parentage. (Id. at p. 1094.) Here, a bonded relationship still existed,
though it was interrupted by defendants after this petition was filed, and further interfered
with by wife’s misrepresentations. Contrary to defendants’ view, Donovan L. implicitly
supports plaintiff’s claim to parentage in this case. (See also Martinez v. Vaziri (2016)
246 Cal.App.4th 373, 382-389 [reversing where claimant uncle had relationship with the
child but trial court took too narrow a view of detriment and denied his petition; the fact

                                             10
the child had two parents and a stable placement did not mean child would not suffer
detriment from severance of relationship with uncle].)
       Similarly, in In re L.L. (2017) 13 Cal.App.5th 1302, a biological father’s exclusion
from his child’s life during a period after he met the presumed parent criteria under
section 7612, subdivision (d) did not deprive him of presumed parent status. (L.L., at pp.
1310-1312; see also In re J.O. (2009) 178 Cal.App.4th 139, 148-151.) That is, such
status (i.e., having the child in his home) did not have to exist at the moment of the court
order. However, the L.L. court reversed a three-parent finding because no substantial
evidence showed the biological father there had an extant relationship with the child, a
result consistent with the Donovan L. holding. (L.L., at pp. 1315-1317.) In contrast, in
this case the trial court found extant bonds between plaintiff and the child were not
broken.
       The mere fact plaintiff and the child had not seen each other for some time before
the trial did not mean there was no extant bonded relationship, as defendants assert.
Defendants point to a passage of a case stating: “A judgment of presumed parenthood
represents a finding that, at the time of entry of the judgment, the person qualified as a
presumed parent.” (In re Alexander P. (2016) 4 Cal.App.5th 475, 491.) We do not read
this language to mean that someone who is a presumed father under section 7611,
subdivision (d) necessarily or automatically loses such status merely because of a
temporal gap in visitation. Whether the bond remains intact at the time of judgment is a
fact-bound decision for the trial court to make. Although defendants warp specific words
and phrases from the court’s ruling to argue it found no bond existed, the court found
plaintiff “has an existing and significant bond” with the child. The passages on which
defendants rely addressed how to cure the interim harm to that extant bond caused by the
involuntary separation defendants themselves caused.
       Section 7612, subdivision (b) provides: “If two or more presumptions arise under
Section 7610 or 7611 that conflict with each other, or if a presumption under Section

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7611 conflicts with a claim pursuant to Section 7610, the presumption which on the facts
is founded on the weightier considerations of policy and logic controls.” Section 7611 in
part references the conclusive presumption provided by section 7540, and also includes in
subdivision (d) the presumption relied on by plaintiff, based on his holding out the child
as his own. Thus, as the trial court recognized, “the presumption which on the facts is
founded on the weightier considerations of policy and logic controls.” (§ 7612, subd.
(b).) Policy in cases such as this has been set by the Legislature.
       In lieu of determining which one of the two (or more) presumptions should prevail
to the exclusion of all competing presumptions, section 7612, subdivision (c), quoted
ante, now offers an alternative by allowing more than two parents to be recognized. A
court may do so “if the court finds that recognizing only two parents would be
detrimental to the child.” In making such a finding, the court shall “consider all relevant
factors, including, but not limited to, the harm of removing the child from a stable
placement with a parent who has fulfilled the child’s physical needs and the child’s
psychological needs for care and affection, and who has assumed that role for a
substantial period of time.” (§ 7612, subd. (c).) There is no need to find that any of the
persons with a claim to parentage are unfit, and no such finding was made herein.
       Although defendants do not head and directly argue a challenge to the sufficiency
of the evidence, the tenor of their briefing--including their repeated claims that a “stable”
marriage exists and therefore the child does not need a third parent--invites us to expound
on the trial court’s detailed findings.
       The trial court discussed all appropriate factors before making the “rare” case
finding. The court distinguished this case from others where a married couple
consistently excluded a biological father, because here defendants allowed plaintiff (and
his close relatives) to establish a bond with the child. The court found the child “must be
protected from the detriment of being separated from one of her three parents. The court
finds it would be detrimental to [her] to recognize only two parents, thus separating her

                                             12
from either [husband or plaintiff]. Moreover, it would be detrimental to [the child] and
her progress to not allow [both men] to participate in legal custody decision-making such
as health and education. The evidence establishes [she] is a child who would benefit
greatly from the continued love, devotion and day to day involvement of three parents.”
       The trial court gave “significant weight to the strong, long and enduring bond
shared by [the child and plaintiff] from the time leading up to her birth and from her birth
and following for more than three years. [Plaintiff] was deeply involved in [her] life until
he was unilaterally excluded from visits . . . after he filed his petition for custody. It is
also established [that husband] has a strong bond with [her] and has been part of her life
since she was born. Both [men] provided persuasive and convincing testimony regarding
. . . their affection and love for [her. She] is fortunate, to have two devoted Fathers that
care deeply for her, love her and are prepared to continue to play an active role in her
life.” Plaintiff wanted “to respectfully co-exist with” husband, who himself had admitted
“that if he stood in [plaintiff’s] shoes he would want to be acknowledged as a third parent
and have a role as a parent.”
       The trial court did not find defendants’ desire to govern the child’s medical care
sufficient to tip the scales in their favor, and found “it would be detrimental to [the child]
if the court were to only recognize two parents when considering the evidence presented
on her autism diagnosis. . . . The court finds each parent has the ability to contribute to
and support [the child] through her childhood as she engages in the required therapies
associated with her diagnosis to assist her in becoming a happy, healthy and self-
supporting adult.” The relatively short time during which plaintiff had been excluded
was lengthened by wife’s actions at an earlier hearing, resulting in an ill-informed ruling.
But that gap did not break the bond plaintiff had developed with the child for over three
years, and could be dealt with by a “measured pace of reconnection facilitated by a
professional.” Nor would recognizing plaintiff’s role remove the child from a stable
home; instead, restoring something akin to the prior schedule “allows for continued

                                               13
consistency and stability” and “preserves the bonds created by more than three years of
continuing care and contact exercised by both [men.]”
       Thus, the record shows that the trial court carefully and conscientiously conducted
the weighing process contemplated by the Legislature before finding that this was one of
the “rare” cases permitted by statute, where a child truly has three parents, and depriving
her of one of them would be detrimental to her.
       Defendants have not pointed to any part of the statutory scheme that exempts
conclusive fathers under section 7540 from the text of the three-parent statute (§ 7612,
subd. (c)) and its immanent purpose to preserve extant parent-child relationships. Nor
have they shown that the conclusive presumption under which defendant husband claims
fatherhood vitiates the rebuttable presumption under which plaintiff claims fatherhood.
(See Craig L., supra, 125 Cal.App.4th at pp. 50-51 [decided before three-parent statute;
courts resolve competing paternity claims by balancing factors, a per se rule “in favor of
preserving any marriage, without regard to the harm the child might suffer, is at direct
odds with the entire statutory framework”].)
        C. Constitutional Claims
       In two sparsely analyzed claims, defendants contend that if the statutory scheme
authorizes the result herein, it violates constitutional norms in two ways. First, they
contend it impinges on the state’s right to protect marriage. Second, they contend it
impinges on their ability to exercise their parental rights. But defendants do not contend
the statutory scheme is facially unconstitutional, and their as-applied challenges falter on
the facts as found by the trial court.
              1. Protecting Marriage
       Defendant’s claim that the judgment attacks the institution of marriage fails
because the state expresses its will primarily through statutes passed by the Legislature
and signed by the Governor. (See, e.g., People v. Knowles (1950) 35 Cal.2d 175, 181-
182.) By such means, the state now authorizes three-parent findings in “rare” cases. (See

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Stats. 2013, ch. 564, § 1(a).) The trial court, following the text of the relevant statutes,
found the child would suffer detriment if she had only two parents. (See § 7612, subd.
(c).) The state’s interests in promoting and defending both the institution of marriage and
the stability of a given child’s life have been protected by the judgment under attack.
       Although state governments have long promoted marriage as a source of stability,
what constitutes a marriage--and the scope of legislative authority over marriage--has
lately been the subject of significant changes. (See In re Marriage Cases (2008) 43
Cal.4th 757; Obergefell v. Hodges (2015) 576 U.S. ___ [192 L.Ed.2d 609].) Today,
stable social compacts that differ from the “traditional” husband-and-wife combination
are protected. This does not diminish the state’s interest in protecting children and
ensuring that their best interests are promoted, regardless of the actions of their parents.
       The statute implemented by the judgment is carefully designed to avoid detriment
to a child by the removal from his or her life of a true third parent. Indeed, as one court
explained, “ ‘[d]etriment’ was selected as a standard for permitting more than one
presumed parent after the Governor vetoed a bill that would have made the decision
dependent on the ‘ “best interest of the child.” ’ ” (In re Alexander P., supra, 4
Cal.App.5th at p. 497.) By heightening the standard that had to be met to declare a third
parent, the Legislature was treading carefully. But defendants do not--and cannot--deny
that protecting children from detriment is a constitutionally valid public policy.
       Instead, defendants make the following claim:

              “Assuming this Court holds that despite the conclusive presumption of
       Family Code section 7540, a child may have two fathers, it should require a court
       to take into account the state’s interest in maintaining marriage in deciding
       whether it may be to the child’s detriment to find that he or she has two parents.
       In other words, before a court may determine that a man with whom the mother
       had an affair while married to the child’s conclusively presumed father under
       Family Code section 7540 may be a third parent under Family Code section
       7612(c), it must first determine the effect such a determination will have on the
       marriage and on the stability of the subject child’s life if the third parent ultimately
       ruins that marriage.” (Italics added.)

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       First, we observe that defendants provide no authority for the implicit proposition
that a child’s detriment should be subordinated to a marriage’s detriment. The adult
parties to a marriage will either work out any marital challenges they face, or they will
not. But generally, even if a marriage fails, the parties thereto will remain lawful parents
of any child therefrom.
       Second, the trial court did consider and address the status of the marriage as we
outlined ante. Defendants paint plaintiff as a would-be homewrecker, and point out that
they have other children together who could be impacted by a divorce. But the trial court
found wife misled plaintiff, causing him to believe she and husband were separated.
Before the child was born, all parties knew plaintiff was the biological father and, with
that knowledge, defendants allowed plaintiff to parent the child and she bonded with him
and his relatives. For defendants now to claim plaintiff poses such a severe threat to their
marriage that he should be excluded despite the finding that his exclusion would be
detrimental to the child rings hollow.
       Third, the trial court explicitly found defendants “intend to remain married
notwithstanding [husband’s] acknowledgement that he was stressed by the affair” and
that at trial “he expressed his renewed commitment to [his wife].”
       Fourth, the trial court found plaintiff “articulated his goal to respectfully co-exist
with” husband, to whom he had apologized for the situation he had unwittingly caused
and had not been aware of husband’s role in the child’s life (due to concealment of facts
by wife). Further, the court found plaintiff had no desire to supplant husband, but instead
wanted “a plan that would allow [the child] to have a relationship with all parents,” and
husband acknowledged that if the men’s positions were reversed, he, too, would want
paternal recognition. Thus, the record shows both men understand and accept the
difficulties inherent in the situation neither of them caused and, to their credit, both want
the best outcome for the child.

                                              16
       Prior cases--albeit predating the three-parent statute--have emphasized that the
burden of a paternity finding similar to the one in this case may or may not threaten a
particular marriage, depending on the facts. (See, e.g., H.S. v. Superior Court (2010) 183
Cal.App.4th 1502, 1507; Craig L., supra, 125 Cal.App.4th at p. 51; Brian C., supra, 77
Cal.App.4th at pp. 1216-1219; Michael H. v. Gerald D. (1987) 191 Cal.App.3d 995, 1009
[predating the three-parent statute and noting that on the facts of that particular case, “the
significant interest of the state in protecting the welfare of [the child] is best served by
upholding the conclusive presumption that Gerald D. is her legal father”].)
       Thus, defendants’ claim that the judgment under review unconstitutionally
threatens their specific marriage lacks any factual basis. And because defendants have
not argued the statute is unconstitutional in all applications, they have forfeited any such
claim. (See In re S.C. (2006) 138 Cal.App.4th 396, 408; In re Marriage of Nichols
(1994) 27 Cal.App.4th 661, 672-673, fn. 3.)
              2. Protecting Paternal Rights
       In another sparsely reasoned claim, defendants contend that by recognizing
plaintiff as a father, husband’s status as a father was diminished. Within this claim they
also assert their joint parental rights are diminished. These claims largely rest on the
erroneous view about the “conclusive” presumption of husband’s paternity that we have
already rejected.
       Defendants point out that “ ‘[a] parent’s right to care, custody and management of
a child is a fundamental liberty interest protected by the federal Constitution that will not
be disturbed except in extreme cases where a parent acts in a manner incompatible with
parenthood.’ ” (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1828.) We agree. But
what defendants overlook is that plaintiff, too, is a parent. He is the biological father of
the child, who has consistently supported her both financially and otherwise. As we have
explained, the fact defendant husband is conclusively presumed to be the child’s father
does not exclude the possibility that she may have a second father.

                                              17
       Defendants do not challenge the facts showing that ousting plaintiff from the
child’s life will cause her detriment. Regardless of how it happened, the fact remains that
the child’s biological father is an important part of her life. For defendants to allow
plaintiff to bond with the child and then cut him off when he tried to formalize the
arrangement threatened detriment to the child.3
       In short, we find no infringement of defendants’ constitutional rights to parent the
child (and their other children) on the facts as found by the trial court.
                                              II
                                        Paternity Test
       Defendants contend the trial court had no legal basis to order a paternity test, in
part because plaintiff lacked standing to request such a test.
       Putting aside the fact that the notice of appeal was taken from the March 14, 2017
judgment and not from the much earlier February 16, 2016 testing order, the issue is
moot because we cannot undo that which was done. (See Consol. etc. Corp. v. United A.
etc. Workers (1946) 27 Cal.2d 859, 863; In re Pablo D. (1998) 67 Cal.App.4th 759, 761
[“we cannot rescind services that have already been received”].)

3 Defendants could have prevented plaintiff from meeting the definition of a presumed
father by excluding him from the child’s life from the moment of birth. (See Dawn D. v.
Superior Court (1998) 17 Cal.4th 932, 942 [biological father’s desire to establish a
relationship with his child is not a fundamental liberty interest protected by the due
process clause]; In re Kiana A. (2001) 93 Cal.App.4th 1109, 1114 [“the unwed biological
father of a child conceived during and born into an existing marriage may be barred by
the conclusive presumption from developing a relationship with the child against the
married [couple’s] wishes”]; Rodney F., supra, 61 Cal.App.4th at p. 239.) But they did
not choose that avenue. They instead allowed plaintiff to form a bond with the child, pay
support for her, hold her out as his own, receive her into his home, and introduce her to
his close relatives, with whom she bonded during the first three years of her life. (See
Craig L., supra, 125 Cal.App.4th at p. 43 [couple could have excluded purported
biological father, but did not].) The end result of this series of decisions by defendants
was the situation facing the trial court.

                                              18
       Moreover, as the trial court found, and as the trial testimony showed, neither
defendant disputed that plaintiff was the child’s biological father. For over three years he
treated the child as his daughter with the consent of defendants. As plaintiff’s counsel
correctly points out, the testing merely provided evidence that was cumulative of what
everyone already knew. Thus, if the testing order was made in error, defendants have not
shown any prejudice. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.)
       Finally, the statute under which the testing was ordered permits such testing in any
action where paternity “is a relevant fact.” (§ 7551.) Defendants argue that because of
the conclusive presumption that the husband is the child’s father (§ 7540) and the two-
year period for testing provided by a connected statute (§ 7541, subd. (b)), there was no
point to ordering genetic testing, that is, it would not resolve any relevant fact involved in
this case. We have already answered that argument adversely to defendants.
                                       DISPOSITION
       The judgment is affirmed. Defendants shall pay plaintiff’s costs on appeal. (See
Cal. Rules of Court, rule 8.278.)

                                                        /s/
                                                  Duarte, J.

We concur:

      /s/
Hull, Acting P. J.

     /s/
Murray, J.

                                             19


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                       ________________________

                              No. 96-6770
                       ________________________
                        D.C. No. CV-95-T-262-N
HENRY C. BAILEY,

                                               Petitioner-Appellant,

                                versus

JOHN E. NAGLE, Warden,
JEFF SESSIONS, Attorney General for
the State of Alabama,
                                               Respondents-Appellees.

                         _ _ _ _ _ _ _ _ _ _

            Appeal from the United States District Court
                 for the Middle District of Alabama
                         _ _ _ _ _ _ _ _ _ _
                        (September 23, 1996)

Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON,
EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit
Judges.

           This appeal is ORDERED to be heard initially by the Court

sitting en banc, limited to the issue of whether a district court

in an action filed pursuant to 28 U.S.C. § 2254, as amended by the

Anti-Terrorism and Effective Death Penalty Act of 1996, has the

authority to grant a certificate of appealability.

           The parties are directed to file with the Clerk's Office

simultaneous briefs limited to this issue, on or before noon, EDT

on October 15, 1996.   No extension of time will be granted.   Briefs

are limited to 25 pages, and no extensions of the page limitations

will be granted.

           Oral argument will be heard on October 23, 1996 in

Atlanta.


81 Ill. App.2d 176 (1967)
225 N.E.2d 437
Theodore Kendrick, Plaintiff-Appellant,
v.
Standard Oil Company, etc., et al., Defendants, and United States of America, Intervenor-Appellee.
Gen. No. M-50,912.
Illinois Appellate Court  First District, Third Division.
March 23, 1967.
*177 McCoy, Ming & Black, of Chicago, for appellant.
Edward V. Hanrahan, United States Attorney, of Chicago (John Peter Lulinski, Lawrence Jay Weiner and Arthur D. Rissman, Assistant United States Attorneys, of counsel), for appellee.
MR. JUSTICE DEMPSEY delivered the opinion of the court.
This is a consolidation of two appeals: Theodore Kendrick appeals from a summary judgment order which held that the United States of America was the rightful owner of a fund deposited with the Clerk of the *178 Circuit Court, and the attorneys for Kendrick appeal from an order dismissing their petition for intervention and for the declaration of an attorney's lien. Kendrick, a war veteran, was injured in an accident in November, 1959, and was confined in the Veterans' Administration Hospital at Hines, Illinois, from November 20, 1959, to June 16, 1960. As an honorably discharged veteran he was admitted to the hospital because, at the time of his injuries, he was unable to pay the necessary expenses for medical services. The principal issue concerns the right of the United States (on behalf of the Administrator of Veterans' Affairs) to recover the reasonable costs of the treatment rendered him during his hospitalization.
The day before his discharge from the hospital, Kendrick voluntarily signed a document entitled "Power of Attorney and Agreement" whereby he transferred to the administrator his claims against any third parties who, because of their tortious conduct, might be liable to him for the cost of his hospital care. On March 20, 1961, he filed a complaint against the Standard Oil Company and Charles and Teddy Tarr to recover for the personal injuries he sustained. Two days later the administrator notified him through his attorneys, and the Tarrs through their insurer, of a lien in the amount of $5,061.98, asserted pursuant to the Illinois Hospital Liens Act, against any proceeds of a suit or settlement arising out of Kendrick's claim. On September 28, 1964, an agreed judgment of $38,000 was entered against the Tarrs, and by agreement Kendrick took nothing by his suit against Standard Oil.
The Tarrs, stating that they were disinterested parties to the controversy between Kendrick and the administrator, petitioned the court to accept their check of $5,061.98 payable to Kendrick and his attorneys out of the $38,000 judgment and to hold the check until presented with a valid release of the hospital lien or further *179 order of the court. The petition was granted and the check was deposited with the clerk. Kendrick then filed a third-party complaint against the United States alleging that the administrator was not entitled to a hospital lien under the Illinois statute and that the agreed judgment was not intended by the Tarrs or himself to compensate him for the hospitalization costs. The United States moved to dismiss on the grounds of sovereign immunity. Its motion was granted and it then asked, and was given leave, to intervene. Its petition in intervention referred to the agreement entered into by Kendrick, the notice of lien given to the defendants, the entry of the judgment and the deposit of the check with the clerk of the court; and it asserted a lien right and claim to the deposited fund. Kendrick's answer alleged that he was a veteran entitled under Federal law (38 U.S.C. § 610 (1958)) to hospital services without charge, that the assignment of a portion of his tort claim to the administrator was without consideration and was void since it sought to transfer a cause of action for personal injuries, and that the administrator was not entitled to assert a lien under the Illinois statute. The United States moved for summary judgment and its motion was granted.
Kendrick first urges several legal impediments to the administrator's recovery of the fund: (1) no Federal statute or regulation authorized the administration to request his execution of the document entitled "Power of Attorney and Agreement," (2) the agreement amounted to an assignment of a cause of action for personal injuries and as such was void under Illinois law and (3) no consideration was given in exchange for his signing the agreement.
Title 38 U.S.C. § 610, provides that:
"The Administrator, within the limits of Veterans' Administration facilities, may furnish hospital care which he determines is needed to

*180 "(1) a veteran of any war ... for any ... disability if such veteran is unable to defray the expenses of necessary hospital care...." (38 U.S.C. § 610(a) (1958).)
This section has been construed to require that an honorably discharged veteran who has signed an affidavit that he is unable to defray his hospitalization expenses must receive treatment without charge. United States v. Harleysville Mut. Cas. Co., 150 F Supp 326 (DC Md 1957). It has been held that the administrator lacks authority to devitalize this right in a veteran or to condition its enjoyment by regulation. United States v. St. Paul Mercury Indemnity Co., 133 F Supp 726 (DC Neb 1955).
Federal laws also provide that the administrator has authority to make rules and regulations necessary or appropriate to carry out the laws administered by the Veterans' Administration (38 U.S.C. § 210 (c) (1958)) and that he shall prescribe rules and procedures governing the furnishing of hospital care and limitations in connection with the furnishing of such care (38 U.S.C. § 621(1), (2) (1958)). Acting under this authority the administrator adopted the following regulation:
"Persons hospitalized ... who it is believed may be entitled to hospital care or medical or surgical treatment or to reimbursement for all or part of the cost thereof, by reason of statutory, contractual or other relationships with third parties, including those liable for damages by reason of negligence or other legal wrong, will not be furnished hospital treatment without charge therefor to the extent of the amount for which such third parties are or will become liable, and such patients will be requested to execute appropriate assignment or other instrument which will entitle the Administrator of Veterans Affairs  on behalf of the United States  to *181 receive and to collect, directly or as assignee, from third party or parties, to the extent of the amounts for which such third party is liable, the cost of such care and treatment as determined under the applicable rules and regulations.... Notice of assignment will be mailed promptly to the party or parties believed to be liable. When the amount of charges is ascertained the bill therefor will be mailed such party or parties, ..." (16 FR 12093, Nov 30, 1951; 38 CFR, § 17.48(d) (1951).)
[1] The regulation does not purport to authorize collection of the hospital costs from the veteran; it is intended to allow the administrator to recover from any third party liable to the veteran. As the court observed in United States v. St. Paul Mercury Indemnity Co., 238 F.2d 594 (8th Cir 1956), the purpose of the regulation is evidenced by its provisions for the taking of an "assignment" by the administrator of any such rights as the veteran may have, for the billing of the third party by the administrator and for the right of the administrator to make collection from the third party. In the instant case the administrator did not demand that Kendrick sign the agreement as a condition to his admission to the hospital or coerce him to sign it before he was discharged. It is undisputed that on the last day of his hospitalization Kendrick was asked to sign and voluntarily did so. The regulation comports with the above cited statutes and so has the force of law. Jones v. United States, 189 F.2d 601 (8th Cir 1951). The administrator acted within his authority when he obtained from Kendrick the transference of his claim against his tort-feasors for the amount of the hospital expenses.
Kendrick cites North Chicago St. R. Co. v. Ackley, 171 Ill. 100, 49 NE 222 (1898) and Wilcox v. Bierd, 330 Ill. 571, 162 NE 170 (1928) in support of his position *182 that the agreement was an assignment of a cause of action for personal injuries and was violative of the public policy of Illinois and void. We believe that the agreement did not violate the public policy of Illinois or Federal policy. The Illinois Hospital Liens Act authorizes a nonprofit hospital which has treated an injured person to recover the amount of its reasonable charges from the third party liable to the injured person; the statute accomplishes this by granting the hospital a lien upon the claims and causes of action of the injured person. Ill Rev Stats, (1965), c 82 § 97. A comparable Federal statute, enacted to supplement the existing means of recovery by the United States of the cost of hospitalization it is compelled to furnish, provides for collection from the third party by subrogating the United States to any right or claim which the injured person has against the third party. 42 USC, § 2651 (1963). (In his motion for summary judgment the administrator relied solely on the agreement; he did not utilize the Federal statute because it did not become effective until two and a half years after Kendrick was hospitalized, and he abandoned his claim of a lien pursuant to the Illinois statute because Federal policy requires that the administrator's method of recovery be uniform throughout the nation. (United States v. Harleysville Mut. Cas. Co., supra.)) It is true that the agreement is drafted in terms of an assignment:
"For a valuable consideration I hereby assign to the Administrator ... to the extent hereinafter indicated, all claims, demands, entitlements, judgments, administrative awards, and the proceeds thereof, and all causes of action which I now have, and which I may have hereafter, by reason of any liability of third parties entitling me to hospital care, or medical or surgical treatment, or to reimbursement for all or part of the cost of any such; or recovery of damages for all or part thereof; *183 including but not limited to claims, or causes of action,
"(a) for damages by reason of negligence or other legal wrong....
"The extent of this assignment is an amount equal to the total reasonable charges for hospital care...."
However, the agreement, and the regulation under which it was drawn, in effect provided for subrogation: the administrator was compelled by law to furnish Kendrick with hospital treatment for the injuries for which third parties were liable; Kendrick's claim was transferred not in full but only to the extent of the reasonable charges for his hospitalization; and this amount was recoverable by the administrator only in the event that Kendrick had a cause of action against the third parties. See Remsen v. Midway Liquors, Inc., 30 Ill. App.2d 132, 174 NE2d 7 (1961). Consequently, the policy reasons for prohibiting trafficking in causes of action for personal injuries do not apply here.
[2] The next point raised is that no consideration was given in exchange for Kendrick's execution of the agreement and that it therefore lacked mutuality. Because the administrator was under a legal duty to furnish hospitalization at his request, it is Kendrick's position that the rendering of services to him was not consideration. But the lack of consideration is not material for the agreement is not a contract. The regulation pursuant to which the agreement was drafted does not empower the administrator to offer hospital treatment in exchange for the veteran's claim; he is authorized simply to request the veteran to execute an instrument which will entitle him to collect from the third party. A similar procedure for obtaining a transfer of the injured party's claim is set forth in title 42 U.S.C. § 2651(a), supra. In requesting Kendrick to sign the *184 agreement the administrator was following the mandate of the regulation, not making a contract.
Finally, Kendrick argues that even if the administrator is authorized to recover from the tort-feasors, he cannot recover the check deposited with the clerk. It is his theory that the agreement entitled the administrator to recover from the judgment only to the extent that the judgment included compensation for the hospital costs, that otherwise the recovery would be from him personally in violation of 38 U.S.C. § 610, supra. In his third-party complaint Kendrick alleged that among the considerations taken into account in settling his claim for $38,000 was "the lack of `specials,' i.e., the fact that the plaintiff was not obligated by law to pay for medical services rendered because he was a veteran legally entitled to such services...."
[3, 4] The defendants' liability to Kendrick included general damages and as an item of special damage the cost of his hospital treatment. Chicago City Ry. Co. v. Henry, 218 Ill. 92, 75 NE 758 (1905). The fact that the treatment was paid for by the Federal Government did not pro tanto discharge the defendants from liability. Cf. Pittsburgh, C. & St. L.R. Co. v. Thompson, 56 Ill. 138 (1870) and Davidson v. Loomis, 282 Ill. App. 515 (1935). After the defendants' liability was established, the provisions of the regulation and of the agreement subjected the total amount for which they were liable to the administrator's claim, with recovery under his claim being limited to the cost of the treatment. The possibility that compensation for the hospital costs was not included in the $38,000 judgment does not mean that the administrator in claiming the deposited fund is obtaining reimbursement from Kendrick. If Kendrick decided to relinquish his right to have the costs compensated by the defendants, it was his decision and not the administrator's exercise of his right to collect from the judgment which caused the amount of the *185 judgment to be less than the total of Kendrick's general and special damage claims, and that decision precludes his contention that the administrator is seeking to collect the costs from him.
Three weeks after the entry of summary judgment for the United States Kendrick's attorneys sought a declaration of their rights to an attorney's lien on the defendants' check and petitioned to intervene. The United States answered that their petition was not timely and that the petitioners failed to qualify for intervention under section 26.1 of the Civil Practice Act. (Ill Rev Stats 1963, c 110, § 26.1.) The petition was denied and the attorneys appealed.
[5, 6] The right of intervention under section 26.1 is not unqualified; all of the provisions of that section, including that of making timely application, must be met. Feiertag v. Reichmann, 21 Ill. App.2d 215, 157 NE2d 818 (1959). The attorneys' application was not timely. They were notified of the administrator's claim over two years before trial of the case began. Nine months before the attorneys filed their application the defendants petitioned to have their check held by the court until the claim of the administrator was released. After the entry of the agreed judgment the attorneys presented Kendrick's argument that the administrator had no right to the fund, and not until after the trial court decided that the administrator was entitled to it did they claim a lien. Their petition was properly denied.
The orders appealed from are affirmed.
Affirmed.
SULLIVAN, P.J. and SCHWARTZ, J., concur.