Another May Be Declared a Child’s Father Despite The Husband’s “Presumed Father” Status

California law provides a means by which one may establish the existence of a parent/child relationship. As is relevant to the case described below, under former Section 7611 of the Uniform Parentage Act, a man is presumed to be the natural father of a child if (among other things) he and the child’s mother are or have been married to each other, and the child is born during the marriage. That presumption may be “rebutted,” and another man may be deemed the father. The interplay of California’s laws relating to matters of marriage, divorce, and questions of paternity is complicated and can affect many serious issues such as child support and other related factors. If you are facing a divorce or questions concerning paternity, you are encouraged to contact an experienced San Diego family law attorney who can help to protect your rights.

The law allows for an “interested party” to bring an action at any time to determine the existence or nonexistence of a parental relationship. In a recent case, the trial court ruled that the mother’s petition to establish a relationship between her son and a man other than her husband (referred herein as “P”) was untimely filed. Here, the mother separated from her husband, who lives in the Philippines, in 2006. In February 2008, she began a relationship with a married man. Later that year, in November, the mother gave birth to “H.” Interestingly enough, her husband’s name was listed on the birth certificate and baptismal invitations as the child’s father. Despite this, while the other man established and maintained a relationship with H since he was born, he never publicly or openly acknowledged that H was his son and ended the relationship with the child when the couple stopped seeing one another.

In July 2011, when the couple’s relationship ended, the mom filed a paternity action to establish a relationship between H and P, seeking not only a declaration that P was H’s father but also child support. P denied that he was the father and asked the court to declare that her husband, whom she never divorced, was H’s presumed father. Even though the trial court ruled that the Code’s conclusive presumption did not apply because the husband was not living with the mom when the child was conceived or born, it refused to order genetic testing under that section of the statute. Further, the trial court characterized the mom’s action as an effort to establish the non-existence of a parent relationship between her husband and H, and ruled that it was untimely because it was not brought within a “reasonable time” under the law.

The court of appeals reversed, concluding that the statute setting forth the time limitation was not applicable to an action to determine the existence of the father and child relationship. The mom sought to establish that P was H’s natural father, and he did not fall within any of the “presumed father” categories under the law. Because of this, the reasonable time restriction did not apply. The court reasoned that where one man qualifies for presumed father status, another man who does not so qualify may still be declared a child’s father if the presumption is rebutted by clear and convincing evidence.

Paternity affects many important aspects of a child’s life. Emotional and financial security are just two of the considerations. When a couple does not divorce and the wife later has children, the legal questions become that much more complicated. An experienced family law attorney would be able to sort through the legal issues with ease and confidence.

Roy M. Doppelt has been representing parties involved in family law disputes for more than 20 years. Doppelt and Forney, APLC serves clients throughout Southern California, including San Diego, Encinitas, La Jolla, and Chula Vista. For a free consultation, contact Doppelt and Forney, APLC through our website, or give us a call toll-free at (800) ROY IS IT (769-4748).

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