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Is the Marriage Presumption the Only Thing Establishing You as a Father?

Posted on: March 6, 2018

Is the Marriage Presumption the Only Thing Establishing You as a Father?

Let’s consider this scenario. A husband and wife have two children and are a family. The husband goes away on business regularly and the wife has a social life while she’s gone. If she goes too far one night and has an affair, and then finds out she’s pregnant, who is the father? No matter who you think is the father, you be surprised to learn what California’s paternity laws have to say about it.

It’s all about the Marriage Presumption

It’s actually rather simple on its face: If a child is born to married parents then it’s presumed to be the child of those parents. Known also as the conclusive presumption, is in place to protect families from a person coming in and trying to gain paternity to a child that was born during that marriage. The law states that both the mother and father have two years from the day the child is born to request genetic testing.

If they don’t do so in that time period, then the paternity is now absolute and cannot be rebutted. This is why it’s known as the “conclusive” presumption. For example, if a child is born by a woman who is married to a man, and three years after the birth a third party proved he was the biological father of the baby, he would not have parental rights – except in a few cases.

Can the Marriage Presumption be used to get out of paying child support?

In the event that the child isn’t the biological child of the wife’s husband, and that couple ends up getting divorced, it is of course no unheard of that the “father” would not want to pay child support for a baby that isn’t theirs. In this instance, the mother may try to go after the biological father for child support. That man could come to court armed with the Marriage Presumption and claim that the man who stuck around is the one who owes child support.

In actuality, the courts say no to this. In County of Orange v. Leslie B., it was established that the purpose of the Marriage Presumption is to protect the family unit – not to give an “out” to a person who has sex with a married woman and doesn’t want to pay child support. Of course, in some cases, the courts may decide to make that man responsible for child support after all. If there’s one thing that’s true of every family law case it’s that there are always variables in play.

Do you need help with a paternity case?

Note that the above is the law but there are always exceptions. If you think that you have a reason to contest the results of a paternity test, or you need to have one done to establish paternity, then we recommend you do it the right why by contacting an attorney. Call Kendall Gkikas & Mitchell, LLP at 909-482-1422 to get started.

Kristina Kendall-Gkikas
Kendall & Gkikas LLP
143 N. Harvard Avenue, 2nd Floor
Claremont, CA, 91711 USA