How does the California Family Code handle the issue of a child born during a marriage when the husband is not the biological father?

It does happen. Sometimes in a marriage, it turns out that a spouse has an extra-marital affair, becomes pregnant, does not tell her husband, and then the child is born during the marriage. Sometime later the secret affair is disclosed, and then it is also disclosed that the child born is not the biological child of the husband. The situation can become complicated when the actual biological father than wants to enter into the child’s life and assert his parental rights over the child while the married couple does not desire that situation. How does the California Family Code generally handle such a scenario?

California Family Code 7540 generally states that the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to a child of the marriage. From the reading of Family Code 7540, the following elements need to be demonstrated to the family court:

  1. There is a marriage;
  2. The wife is cohabiting with her husband (i.e., living or residing such that the couple is making a home together by living together);
  3. The husband is able to conceive children, meaning he cannot be impotent or sterile;
  4. A child was born during the marriage

California case law has interpreted the application of Family Code 7540 over the years. Family courts may chose to apply or not apply the “conclusive presumption” rule of Family Code 7540 in a given case. The courts may try to balance the due process legal rights of each person affected in such a scenario where the biological father is seeking to assert his parenting rights when the child has been cared for or brought up by the wife and husband. If a family law judge believes it is in the best interest of the child that he or she be ruled to be a “child of the marriage” and thereby protecting the integrity and unity of the family, then the conclusive presumption state in Family Code 7540 will be applied.

Therefore, it is important to carefully examine the facts and evidence of a situation where another man is claiming to be the father of a child when that child was born during the marriage of a woman and another man. It is equally important for anyone involved in such a situation to obtain experienced legal representation from a family law attorney. At the Gonzalez Law Firm, with over 17 years of legal experience in matters involving paternity and custody issues, you can be assured that you will receive the best legal representation for your legal dilemma. Attorney David Gonzalez will guide you during any legal proceeding in which you face. He serves all counties, including Los Angeles, Orange and Riverside Counties, in California. You can trust your child custody matter with his firm. Call his firm at 1-877-345-2997 today for a child custody consultation.