Legal Question in Family Law in California

The husband is deemed to be the natural father of the child. The mother is not in a position to contest paternity at this time even if the DNA test proves that you are the father of the child. If her husband seeks to maintain his paternity, the outcome of the DNA testing will be irrelevant and you would not have standing to bring an action against the husband for paternity. If however, the mother and her husband agree to set aside paternity and allow you to establish paternity over the child, you would might be responsible for payment of child support and could be entitled to visitation with the child. Prior to taking a DNA test, you should contact an attorney to take steps to make sure that your interests are protected.

The above seems correct.

Another sad case of a parent who makes a life decision for her child because it was convenient for her, but now that it isn't she wants to stir things up. For her to come now, after she has caused all the damage, and somehow "clear her conscience", in my mind, does not absolve her of anything.

Ms. Van Haren is correct, you will likely not be able to take parental rights from her husband. The Courts see it from the child's point of view. Say that you are the child, and your whole life you know one man as the father, and now you learn not only that Dad is not really dad, but that Mom has terribly betrayed you.

This woman has other motives for encouraging you to become involved. Personally, I would move on. I would not even talk to someone who would do such a thing as that to me in the first place. To do the right thing by this child, put yourself in that little girl's shoes.

Even in the best case scenario, say the Court somehow grants you paternal rights. What kind of visitation schedule is a judge going to allow a man who doesn't even know the child? The fact that her mother is the reason for not knowing you is inconsequential, it is what it is. Your child support obligation is based on visitation percentages, and you would be paying a good sum. She may not mention support now, but who knows what else she may do if it becomes convenient for her if she is willing to create this type of situation. And what about Dad? Is he just obliterated from her life? That woman has made decisions that are unfair to everyone, and seems to want to continue it by trying to pull you in on the mess she created.

I don't agree with the previous answers. They refer to what is called the Roman Law presumption. That is embodied in Family Code section 7540. �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.)

As you can see from the text of that statute, the presumption that the child is a child of the marriage only applies if the wife was cohabiting with the husband. You have stated that they were separated, thus the presumption does not apply. The presumption of Family Code section 7540 does not apply if the parties were married, but not cohabiting. (Brian C. v. Ginger K. (4th Dist. 2000) 77 Cal.App.4th 1198, 1204-1205.) �Cohabiting� means living together in a marital household and sharing day-to-day to life. (Steven W. v. Matthew S. (1st Dist. 1995) 33 Cal.App.4th 1108, 1115.)

Thus, she can bring a paternity action against you, and you would have to submit to genetic testing. If you are proven to be the father, you have the rights to visitation and custody, but are also liable for child support.

I am familiar with those cases, none of which are on point with the facts given, and I disagree that they would apply to this case. In the second case cited, the Court states,

"The paternity presumptions are driven by state interest in preserving the integrity of the family and legitimate concern for the welfare of the child. The state has an " 'interest in preserving and protecting the developed parent-child ... relationships which give young children social and emotional strength and stability.' " (Susan H. v. Jack S. (1994) 30 Cal. App. 4th 1435, 1442 [37 Cal.Rptr.2d 120], citing Michelle W. v. Ronald W. (1985) 39 Cal. 3d 354, 363 [216 Cal.Rptr. 748, 703 P.2d 88].) The courts have repeatedly held, in applying paternity presumptions, that the extant father-child relationship is to be preserved at the cost of biological ties. (Michelle W. v. Ronald W., supra, at p. 363 [alleged biological father's abstract interest in establishing paternity not as weighty as the state's interest in familial stability and the welfare of the child]; Comino v. Kelley (1994) 25 Cal. App. 4th 678, 684 [30 Cal.Rptr.2d 728] [court refused to apply conclusive presumption of Evidence Code section 621 to deny the child the only father she had ever known].)"

While section 7540 may not always apply, that would not be the only reason I would say your chances are pretty slim.