Paternity: When the Husband Isn’t the Father

In today’s society, where more and more couples are having children outside a traditional marital relationship, men are increasingly being called on to take legal and financial responsibility for their children, even if they are not married to the mother at the time of the child’s birth.  They accept parenting responsibilities by signing the child’s birth certificate, voluntarily paying child support, and/or co-parenting with the child’s mother. In the past, however, this was not always the case and having a child out of wedlock was far less common.

The Paternity Presumption

The California family law system wants to encourage a stable nuclear family.  With this in mind, there is a long-standing (and sometimes inaccurate) presumption called the paternity presumption. Under the paternity presumption, if a woman is married and living with her husband when she gives birth to her child, and her husband is not impotent or sterile, the husband is presumed to be the father of her child.

While this presumption may make sense in many situations, it isn’t always practical. Some marital relationships can be more complicated than others and are not always monogamous.  What happens in the event the father of the child and the husband are not the same man? In the event that a child is born to a mother and the paternity presumption is applied, the biological father of the child would be left with no legal rights or obligations to the child.

Michael H. vs Gerald D.

This issue was brought to the United States Supreme Court in a case entitled Michael H. v. Gerald D. In that case, Gerald was married to international model Carol. Shortly after their marriage began, Carol had an affair with Michael. The affair resulted in a child named Victoria. Because Gerald was neither impotent nor sterile, he was presumed to be Victoria’s father.

Michael took his challenge all the way to the Supreme Court and the court found that under California law, Michael had no rights to visit the child or participate in her upbringing despite being her biological father. Fortunately, since Michael H. v. Gerald D., California has altered their paternity presumption law.  Now, a biological father or an advocate acting on behalf of the child, can challenge the marital presumption, as long as it is done within the first two years of the child’s life.

A Father’s Rights

If you are a father in this situation what should you do? It always is a good idea to talk to a skilled family lawyer in Los Angeles. By speaking to your attorney while the mother is pregnant, you will streamline the paternity process. Of course, you will likely want to plan to have a blood test done in order to establish rightful paternity of the child. Next, if you are the biological father of the child, it is important for you to be present for the birth and sign the birth certificate once the child is born.  Finally, a biological father (or mother) should file a paternity action with the court before the child is two, to legally establish who the true biological father of the child is.  This way, you will not lose the rights to be part of your biological child’s life.

For more information about paternity rights, particularly in a situation where you are not married to the mother of your child, contact the expert family law attorneys at the Los Angeles law firm of Walzer Melcher LLP today.

September 30th, 2014


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