Legal Question in Family Law in California

The first and most important question is was she married to the man when the child was conceived and born. If so, unless you WANT to step forward and claim the child or the husband wants to get out from under the obligations of being the father, the odds are virtually zero that you would even be required to do a paternity test. If the husband wants to claim he is the father and you don't, the court is extremely unlikely to upset the child's world by ordering a paternity test and if positive to order the only dad the child has known out of the child's life. Even if they were not married, as long as he wants to claim paternity and you do not, policy strongly favors continuity in the child's life. If you DO want to claim paternity, however, it is a whole other and much more complicated matter, and depends in part on whether the husband wants to fight you for the child. In any case, though, unless and until you are adjudicated to be the father, you cannot be liable for child support, but if you are adjudicated to be the legal biological father, then you most certainly will have to pay child support unless the mother makes a great deal more money than you do, or you get primary custody.

Mr. McCormick refers to the Roman Law presumption of paternity. It is embodied in California law, 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)(Emphasis added.)

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.) It also does not apply if the father was sterile, such as the result of a vasectomy.

Family Code section 7541 provides the only statutory basis for rebutting the presumption. That procedure involves blood tests, which courts currently accept as genetic testing. That section, however, has a two year limitations period, which runs from the date of birth of the child. The reason for this statute of limitation is to prevent parties from disrupting a father child bond once it has been established, by requests for paternity testing later in the child's life.