Paternity Can You Overcome the Legal Presumption of Husband Paternity?

Though the most obvious way to overcome that a husband cohabiting with a wife at the time of conception is the father is through a paternity test, other methods may be available. For example, if the husband was sterile or impotent at the time of conception, then the presumption is overcome.

Also, for the family law court to recognize a paternity test, a party must request the paternity test to the court, and the court must authorize the request. Any test not authorized by the court has no legal effect, even if the test was properly performed and conclusively establishes that the husband is not the biological father.

Even if a husband is determined to be the biological father, the court may legally recognize someone else as the legal father under narrow circumstances. For example, if the wife divorces the husband shortly after conception, subsequently establishes a long-term relationship with a third party, and the third party believes he is the father of the child and represents himself to other people as the father, a court will look closely to determine if it would be unfair to establish paternity in the husband at the time of conception. This is true especially if the third party has a relationship with the child and the third party, the wife, and the child have considered themselves a family for a significant period of time. In such cases, the court may find that the third party is the legal father, even if he is not the biological father.

Note that this may have significant consequences. California courts prefer that a child grow up with two parents rather than one, and are inclined to legally recognize a presumed party who has a father-like relationship to the child, even if the facts later show that he is not the biological father. This may mean that, if a presumed father has established a relationship with a child, and significantly later determines that the presumed father is not the biological father, the court has the discretion to acknowledge the presumed father as the legal parent. This may apply even if the formerly presumed father no longer wants the legal responsibilities of parenthood over the non-biological child, as long as there are no other known potential or alleged biological fathers.

If a father acknowledged paternity in a court document, then he is no longer a presumed father: for court purposes, he is the legal father, even if tests later show he is not the biological father.

Whether you’re a father or mother seeking to establish or deny paternity, contact a Southern California family law lawyer as soon as possible to discuss your options. In either case, you need to act quickly or the court may use the delay against you. Parenthood comes with significant duties but also profound rewards, so consult with a family law attorney to determine what your rights are. Parenthood is one of the most important relationships in your life, so you will need a legal professional on your side to help explain the laws to you.

If you or someone you know has an issue related to paternity, you will need an experienced Southern California family law attorney to advise you on the best course of action. At Wallin & Klarich, we have helped people with paternity issues for over 30 years. Call us today at (888) 749-7428. We will be there when you call.