Legal Question in Family Law in California

You are in a touchy situation. California observes what is known as the Roman presumption of paternity, which is that a child born of a couple that is married and cohabiting is presumed to be the child of the marriage. "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.)

One of the requirements that triggers this presumption is often overlooked, and that requirement is cohabitation. 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.)

As pointed out in the statute cited above, the presumption is rebutted by a blood test (which is now really genetic testing.) The blood test is sought by the husband, or by the presumed father, but the motion for blood testing may not be filed later than two (2) years from the date of the birth of the child. (Fam. Code, � 7541.)

The other fellow may not have standing, however, to claim paternity. Based on the facts presented, I do not see him qualifying as a "presumed" father. This assumes of course that you and the baby's mother are married to each other and the child is born during the marriage. (Fam. Code, � 7611.)

The short answer to your question is that the other guy can petition the court for genetic testing any time up to two years after the child is born. If he is the biological father, he will then have parental rights, but will also be on the hook for child support.