Legal Question in Family Law in California

Re: Non biological father's rights in divorce

Most likely not. Family Code Section 7541 requires that you move

for blood tests to determine your nonpaternity within two years from the child's date of birth.

Perhaps there is an argument that if your wife concealed an affair, and your non-paternity, she

is prevented from relying upon the two-year requirement. There is a recent case (non-marital) in which a judgment

of paternity was overturned on a similar argument.

Occasionally, courts forget about the two year requirement. If you really wish to contest your paternity (which has other

aspects than merely child support), you should put the paternity at issue in your pleading in the dissolution action.

Jed Somit

Jed Somit, Attorney at Law

1440 Broadway - Suite 910

Re: Non biological

I read Mr. Somit's reply and generally concur. However, there is some tension between Family Code 7541 and Family Code 7540. 7540, like Evidence Code 621, states that the marital presumption applies, and can only be rebutted within the first two years of the child's birth, where the conception occured to a married couple, living together, and where the Husband is not sterile or impotent. Arguably, the 2 years does not apply to you because the marital presumption does not apply, since you were sterile at the times of conception.

The non-marital case referred to by Mr. Somit has, I believe, been de-published.

Be advised that for you to have any possibility of even getting the court to order paternity testing at this late date, you will (per another appellate case) have to show that you are really, really sterile. In other words, if your sperm count is so low that conception is highly unlikely, that is not enough. It has to be impossible.

Matthew Kremer

Law Offices of Matthew M. Kremer

9665 Chesapeake Drive, Suite 310

Re: Non biological

You need to have a paternity test done to establish

for a fact that you are not the father of the

two children that you raised.

John Hayes

The John Hayes Law Offices

P.O. Box 3003