[626]*626Opinion
KINGSLEY, J.
The case comes before the court on a settled statement on appeal in lieu of both the reporter’s and clerk’s transcripts.
Ronald K., a young attorney, and his wife Jill are petitioners for adoption of Marie R., a baby bom January 11, 1976. The baby’s mother is Sheila R. and both Sheila’s husband, Scott R., and respondent, Charles K., claim paternity.
Sheila and Scott were married January 8, 1976, three days before the birth of the baby, and the birth certificate lists Scott as the father. Immediately after birth, Sheila and Scott placed the baby with petitioners for adoption and the baby has lived with petitioners ever since she was two days old. Sheila and Scott do not now live together.
Over a year prior to the petition for adoption, Charles had filed a complaint to establish paternity. That action is still pending. Subsequent to the filing of the petition for adoption, petitioners filed and served on Charles a notice pursuant to Civil Code section 7017.
Sheila testified that she was not married to Charles and did not cohabit with him at the time of conception, and that Charles had not received the child into his family or into his home. The trial court decided to permit Charles to introduce evidence as to paternity purportedly pursuant to Civil Code section 197 as amended. Charles testified that he had intercourse with Sheila, that they were engaged, and that he wanted to keep the baby. Sheila testified that she had had intercourse with both Scott and Charles during the period of conception, that she let Charles assume he was the father of the baby, and that Charles was unemployed. Scott also testified to intercourse with Sheila during the period of conception. Both Sheila and Scott testified that they wanted the baby adopted by a stable, happily married couple.
Blood tests were inconclusive.
Charles had never actually seen the baby. He did not contribute to the baby’s or Sheila’s prenatal support or the expenses of birth, although he offered to do so. He also paid no support after birth.
The trial court found that Charles “constructively received the baby as his own, although actual receipt of the baby was prevented by the natural mother.”
[627]*627Claimants Sheila and Scott appeal from the court order which found that the petition for adoption could not proceed without Charles’ consent, and which found that Charles is the presumed father who is legally entitled to custody of the child.
I
While the baby was conceived in 1975, prior to the effective date of the Uniform Parentage Act, that law was in effect at the time of the child’s birth and at the time of the institution of the proceedings herein involved. We regard the case at bench as governed by the law as expressed by the present law, which is also the law applicable at the date of birth.
Under the present law, Civil Code section 224, as amended by California Statutes, 1975, chapter 1244,1 permits an adoption with the sole consent of the mother except where a child has a “presumed” father as defined in section 70042 of the Civil Code. In the latter case the [628]*628consent of the father is also required. Section 7017 of the Civil Code, adopted as part of the same revision of our law, is to the same effect.
Since Charles, admittedly, has never been married to Sheila, the presumption contained in paragraphs (1), (2) and (3) of subdivision (a) of section 7004 are not herein involved. Charles’ claim, and the trial court’s decision, rest on the theory that he became a “presumed” father under paragraph (4) of subdivision (a) of that section—i.e., that he had received the child into his home and openly recognized it as his child. On the other hand, Scott may rely on paragraph (1) of subdivision (a) of that same section, since he and Sheila were married at the time of the child’s birth.
The briefs discuss at some length cases decided under former section 2303 of the Civil Code, which was repealed by the 1975 legislation. While [629]*629those cases have some limited value in interpreting that part of the language in new section 7004 that is the same as some of the language in former section 230, they are not controlling in the case at bench, since section 230, by its terms, presupposed the fact of paternity.
Prior to the adoption of the Uniform Parentage Act, legislation and case law in this field were concerned with establishing the status of legitimacy, from which status various rights flowed. However, the new legislation abolished the entire concept of legitimacy and substituted, as the basis for determining those rights, the concept of parentage.
However, while the Uniform Parentage Act abolishes the concept of legitimacy, the Legislature has retained, in the situation before us, two carry-overs from that concept. The effect of the new law is to draw a distinction between a natural father proven to be such by the evidence and “presumed” fathers whose paternity can be determined by use of presumptions. One such distinction is involved in the case at bench.4 While both kinds of “fathers” are obligated to support the child and both kinds of fathers may, if they move promptly, have some rights to custody. Only a “presumed” father may, under section 224, object to an adoption sought by the natural mother. That a Legislature may validly draw that distinction is apparent from the recent decision of the United States Supreme Court in Quilloin v. Walcott (1978) 434 U.S. 246 [54 L.Ed.2d 511, 98 S.Ct. 549]. Thus the only issue properly before us on this appeal is whether Charles has the status of a “presumed” father under paragraph (4) of subdivision (a) of section 7004. We conclude that he does not.
In support of his claim to being a “presumed” father, Charles relies on a series of cases decided under old section 230. It is true that, in the cases so relied on, the courts strained to find a legitimation under that section, because the status of legitimacy had such importance at that time. However, that motivation is no longer present under the present law as applied to the facts of this case. Whether Charles is, or is not, determined to be the child’s father, the baby will end up with a father—either Charles or Ronald K.
[630]*630Even the cases under old section 230, seeking to establish legitimacy, fail to support Charles’ claim that he can rely on paragraph (4). In Lavell v. Adoption Institute (1960) 185 Cal.App.2d 557 [8 Cal.Rptr. 367], an admitted natural father had lived with the mother during conception, and had openly acknowledged that the expected child was his. In Hurst v. Hurst (1964) 227 Cal.App.2d 859 [39 Cal.Rptr. 162, 19 A.L.R.3d 635], the natural father, who had at all times admitted his paternity, rented an apartment in his name, established the mother and child therein, and paid the expenses of the household. In In re Richard M. (1975) 14 Cal.3d 783 [122 Cal.Rptr. 531, 537 P.2d 363
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[626]*626Opinion
KINGSLEY, J.
The case comes before the court on a settled statement on appeal in lieu of both the reporter’s and clerk’s transcripts.
Ronald K., a young attorney, and his wife Jill are petitioners for adoption of Marie R., a baby bom January 11, 1976. The baby’s mother is Sheila R. and both Sheila’s husband, Scott R., and respondent, Charles K., claim paternity.
Sheila and Scott were married January 8, 1976, three days before the birth of the baby, and the birth certificate lists Scott as the father. Immediately after birth, Sheila and Scott placed the baby with petitioners for adoption and the baby has lived with petitioners ever since she was two days old. Sheila and Scott do not now live together.
Over a year prior to the petition for adoption, Charles had filed a complaint to establish paternity. That action is still pending. Subsequent to the filing of the petition for adoption, petitioners filed and served on Charles a notice pursuant to Civil Code section 7017.
Sheila testified that she was not married to Charles and did not cohabit with him at the time of conception, and that Charles had not received the child into his family or into his home. The trial court decided to permit Charles to introduce evidence as to paternity purportedly pursuant to Civil Code section 197 as amended. Charles testified that he had intercourse with Sheila, that they were engaged, and that he wanted to keep the baby. Sheila testified that she had had intercourse with both Scott and Charles during the period of conception, that she let Charles assume he was the father of the baby, and that Charles was unemployed. Scott also testified to intercourse with Sheila during the period of conception. Both Sheila and Scott testified that they wanted the baby adopted by a stable, happily married couple.
Blood tests were inconclusive.
Charles had never actually seen the baby. He did not contribute to the baby’s or Sheila’s prenatal support or the expenses of birth, although he offered to do so. He also paid no support after birth.
The trial court found that Charles “constructively received the baby as his own, although actual receipt of the baby was prevented by the natural mother.”
[627]*627Claimants Sheila and Scott appeal from the court order which found that the petition for adoption could not proceed without Charles’ consent, and which found that Charles is the presumed father who is legally entitled to custody of the child.
I
While the baby was conceived in 1975, prior to the effective date of the Uniform Parentage Act, that law was in effect at the time of the child’s birth and at the time of the institution of the proceedings herein involved. We regard the case at bench as governed by the law as expressed by the present law, which is also the law applicable at the date of birth.
Under the present law, Civil Code section 224, as amended by California Statutes, 1975, chapter 1244,1 permits an adoption with the sole consent of the mother except where a child has a “presumed” father as defined in section 70042 of the Civil Code. In the latter case the [628]*628consent of the father is also required. Section 7017 of the Civil Code, adopted as part of the same revision of our law, is to the same effect.
Since Charles, admittedly, has never been married to Sheila, the presumption contained in paragraphs (1), (2) and (3) of subdivision (a) of section 7004 are not herein involved. Charles’ claim, and the trial court’s decision, rest on the theory that he became a “presumed” father under paragraph (4) of subdivision (a) of that section—i.e., that he had received the child into his home and openly recognized it as his child. On the other hand, Scott may rely on paragraph (1) of subdivision (a) of that same section, since he and Sheila were married at the time of the child’s birth.
The briefs discuss at some length cases decided under former section 2303 of the Civil Code, which was repealed by the 1975 legislation. While [629]*629those cases have some limited value in interpreting that part of the language in new section 7004 that is the same as some of the language in former section 230, they are not controlling in the case at bench, since section 230, by its terms, presupposed the fact of paternity.
Prior to the adoption of the Uniform Parentage Act, legislation and case law in this field were concerned with establishing the status of legitimacy, from which status various rights flowed. However, the new legislation abolished the entire concept of legitimacy and substituted, as the basis for determining those rights, the concept of parentage.
However, while the Uniform Parentage Act abolishes the concept of legitimacy, the Legislature has retained, in the situation before us, two carry-overs from that concept. The effect of the new law is to draw a distinction between a natural father proven to be such by the evidence and “presumed” fathers whose paternity can be determined by use of presumptions. One such distinction is involved in the case at bench.4 While both kinds of “fathers” are obligated to support the child and both kinds of fathers may, if they move promptly, have some rights to custody. Only a “presumed” father may, under section 224, object to an adoption sought by the natural mother. That a Legislature may validly draw that distinction is apparent from the recent decision of the United States Supreme Court in Quilloin v. Walcott (1978) 434 U.S. 246 [54 L.Ed.2d 511, 98 S.Ct. 549]. Thus the only issue properly before us on this appeal is whether Charles has the status of a “presumed” father under paragraph (4) of subdivision (a) of section 7004. We conclude that he does not.
In support of his claim to being a “presumed” father, Charles relies on a series of cases decided under old section 230. It is true that, in the cases so relied on, the courts strained to find a legitimation under that section, because the status of legitimacy had such importance at that time. However, that motivation is no longer present under the present law as applied to the facts of this case. Whether Charles is, or is not, determined to be the child’s father, the baby will end up with a father—either Charles or Ronald K.
[630]*630Even the cases under old section 230, seeking to establish legitimacy, fail to support Charles’ claim that he can rely on paragraph (4). In Lavell v. Adoption Institute (1960) 185 Cal.App.2d 557 [8 Cal.Rptr. 367], an admitted natural father had lived with the mother during conception, and had openly acknowledged that the expected child was his. In Hurst v. Hurst (1964) 227 Cal.App.2d 859 [39 Cal.Rptr. 162, 19 A.L.R.3d 635], the natural father, who had at all times admitted his paternity, rented an apartment in his name, established the mother and child therein, and paid the expenses of the household. In In re Richard M. (1975) 14 Cal.3d 783 [122 Cal.Rptr. 531, 537 P.2d 363], the natural father and the mother had lived together for two weeks after the birth of the child and, thereafter, the child, with the consent of the mother, had visited the natural father for weekends and, occasionally, for longer periods.
In all of those cases, and the other cases on which they rely, there was some actual contact between the natural father and the child; here there was none.
Charles here relies on the fact that he has tried to have the child with him in his mother’s home but has been frustrated in those attempts by the refusal of the mother to permit him to have the child. But that is not sufficient. The cases have recognized that a mother may, by her conduct, prevent a natural father from securing even the minimal contact with the child that old section 230 required. (Adoption of Rebecca B. (1977) 68 Cal.App.3d 193, 198 [137 Cal.Rptr. 100]; In re Reyna (1976) 55 Cal.App.3d 288, 300 [126 Cal.Rptr. 138].) Absent even the minimal contact recognized in the cases above cited, there can be no receipt, constructive or otherwise, into the home of a purported father. Since nothing in the record before us shows any contact between Charles and the child, but only his efforts to establish such contact, rejected by the mother, the finding of the trial court that Charles is a “presumed” father under section 7004 is without support and must be reversed.
The order appealed from is reversed.
Files, P. J., concurred.