What is California’s Marriage Presumption?
Marriage Presumption – what this phrase refers to, is that in California, a child who is born to two parents who are married to one another then the child is presumed to be the biological child of the husband.
However, as Leo Tolstoy penned “All happy families are alike; each unhappy family is unhappy in its own way.” The family courts see all kinds of strange scenarios, and knowing the ins and outs of the marriage presumption may prove key to many more individuals than you might think.
Celebrity Examples
90 day fiancé darlings Jasmine and Gino find themselves in an interesting situation. The couple, who famously married a few years ago, are known to fans of the reality show for their wild antics. The latest headlines surround Jasmine’s confirmed pregnancy – most notable because she openly admits that even though she and Gino are still married, the baby belongs to her boyfriend. At the end of the latest 90 day fiancé spin off special in which the couple appeared, Gino and Jasmine confirmed they were still together.
Regardless of whatever may develop in the world of reality t.v., this situation is not a one-off. The infamous Gypsy Rose Blanchard also recently announced a pregnancy with a boyfriend while she was still married to a different man.
So what happens when complicated family dynamics show up in court?
Who is the child’s father?
As stated at the front: In California if a child is born to two married people living together at the time of conception, then the presumption is the husband is the father of the child.
The law was developed with the goal of protecting the family unit. Particularly before the discovery of DNA testing. What if a new mother and baby is rejected by her husband, the husband proclaiming that the baby is not his and he will not be responsible? Alternatively, what if an outsider comes in and tries to assert a right to a child of that marriage?
Under California law, the parent of a child born during the course of a marriage has two years from the birth of the child to ask for genetic testing. If this is not done, the presumption that the husband is the father is absolute. So, a 3rd party has two years from the date the child is born to assert their parental rights.
California family code section 7541 states that 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. Further, it states that the presumption can only be rebutted by genetic testing if it is petitioned for within two years of the child’s birth.
Child Support?
It is important to note that this presumption of paternity was built into the law as a way of protecting the family unit. Notably, the courts have found that if the family unit is no more, the presumption of paternity cannot be used for benefiting those outside that unit.
For example, the courts have found that a 3rd party father could not assert the presumption of paternity to avoid paying child support when a husband and wife divorced due to the affair the child was conceived in. In a common-sense way this makes sense, as it does not serve the courts, who want to protect families, to award a 3rd party interloper with forcing the husband to pay support payments to take care of the cuckolder’s child.
All of that being said – it cannot be overstated that family law, divorce, and support issues can be very nuanced and quite complicated. It is important to consult with competent legal counsel to understand how various details might come together and play out in your own case.
Contact Cardwell, Steigerwald Young
For questions on any of your San Francisco family law related issues, contact the experienced family law attorneys at Cardwell, Steigerwald Young.
Sources:
eonline.com/news/1415439/90-day-fiances-gino-palazzolo-addresses-estranged-wife-jasmine-pinedas-pregnancy
digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1675&context=ggulrev#:~:text=12.-,CAL.,his%20natural%20child.%22%20Id.
