You receive orders that your ship will soon deploy out to sea, meaning you will be away from your new bride for at least 6 months, so you ask your good friend to watch over her while you are away.  A few months after shipping out, you are excited to learn that your wife is pregnant.  After some initial complications, your wife gives birth to a healthy baby.  

Next, the bad news: your wife informs you that she had an affair with your good friend shortly after you shipped out and the baby might be his.  So you do what you think is the responsible thing and have genetic tests performed, which indicate that your friend, not you, is the biological father. A short while later, the local department of child support services opens up a case against your (ex) good friend, and you think you are in the clear.  However, at trial the Court makes a finding that you, not your friend, are the “legal” father of the child and that you must pay child support, even though genetic testing shows you are not the biological father.

While at first this may not seem like a fair result, the Court’s decision was based on the legal theory know as the “marital presumption of paternity.” California Family Code §7540 states, “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.” This means, if a child is conceived while a married couple is physically living together, the husband will be the child’s legal father, period (subject to 2 exceptions).  

The public policy behind this provision is as follows: to preserve the integrity and stability of an existing marital family unit and to promote individual rather than state financial responsibility.  As such, if neither of these goals would be furthered by implementing the presumption in a particular case, the court is not forced to apply the presumption. The other way to defeat the presumption is by filing a non-paternity action and requesting court-ordered genetic testing (see Family Code §7541). However, this request must be made before the child’s 2nd birthday and the genetic tests must be court-ordered;  If not, the genetic tests have no legal significance, regardless of their results.

In the true story described above, while the parties submitted to genetic testing, the tests were voluntary tests, not court-ordered, meaning the Court could not consider their results.  Additionally, the action filed by the County was not filed until after the child had already turned 2 years old, meaning it was then too late to request court-ordered genetic tests.  In the end, the Court had no choice but to apply the marital presumption of paternity and the (innocent) sailor is now the child’s legal father. The lesson to be learned here is: if you find yourself in a similar situation don’t wait to involve the courts until it’s too late, be proactive and protect your rights.