Legal Question in Family Law in California

You are going to need to consult with a competent family law attorney as soon as possible.

Answering your question depends on specific facts, many of which you have not provided. Your question also involves the interplay between what is known as the Roman Presumption, the modern tendency toward genetic testing, and parentage by estoppel.

The Roman Presumption of paternity stems from Roman Law. It is codified in California as 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.� That means that a child born while you were married and cohabiting is going to be presumed to be your child, unless you meet the requirements of Family Code section 7541.

Cohabiting has a specific definition. It is not clear if this child was born while you were separated or cohabiting. �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.)

Family Code section 7541 provides that a husband may filed a motion for blood tests, which is commonly understood to be genetic testing. The current techniques for paternal testing are using polymerase chain reaction (PCR) and restriction fragment length polymorphism (RFLP.) RFLP comparison can produce extremely small match probabilities. (People v. Barney (1st Dist. 1992) 8 Cal.App.4th 798, 805.)

There is a time limit on a motion for these tests, however. "The notice of motion for blood tests unde this section may be filed not later than two years from the child's date of birth by the husband..." (Fam. Code, sect. 7541 subd. (b).)

The reason for this time limit is the child tends to bond with the presumed father, and court's are reluctanct to traumatize the child by disturbing this bond.