Child Support
Marriage Presumption

Marriage Presumption

February 11, 2016

What is the Marriage Presumption?

What most people think is routine or normal, is not necessarily normal in the family law court. Incredible fact patterns reveal themselves almost everyday in the family law court.

Husband and wife are married and they have two children and they are living together as a family. Husband is away on business a lot and wife has a lot of free time on her hands. She finds herself making a poor choices (or perhaps a better choice) and has an extra-marital affair. She discovers that she is pregnant!

Now the question is: Who is the child’s father?

Marriage Presumption – In California, a child born into a marriage is presumed to be the child of that marriage. This presumption, known as the conclusive presumption, is designed to protect the family unit from an outsider trying to come in and assert a right to the child of the marriage. The father (or the mother) has two years from the birth of the child to ask for genetic testing. If they fail to do so, then the presumption is considered absolute, i.e. cannot be rebutted. Hence, it is called the “conclusive” paternity presumption. So it this fact pattern, the 3rd party has two years from the date the child is born to assert his parental rights. If he waits longer than 2 years, he would be conclusive barred from asserting his parental rights, even if genetic test prove later that he is the father.

Specifically, the rule states that “[e]xcept

as provided in section 7541, 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.”

Family Code §7540. The presumption can be rebutted by genetic testing, but only if someone petitions for it within 2 years of the kids birthday.

Can a third party assert the marriage presumption against the husband to avoid child support?

As you can imagine, many marriages involving infidelity fail. In such circumstances, often the husband is not interested in being a father of the child of the affair. And in many cases, by the time the parties realize it is not going to work, the child is over the age of two and the mother will seek child support from the biological dad. In such cases, there have been instances in which the third party (the guy who had the affair with the married woman) comes to court asserting the marriage presumption. In other words, the guy who had the affair will say this kid was born into the marriage of the husband and wife and the child is over the age of two. Therefore, he will seek to have the husband be responsible for the child support. In such cases, the courts have been unwilling to apply the marriage presumption. The marriage presumption “was never intended as a financial prophylactic for men who have affairs with married women.” County of Orange v. Leslie B., 14 Cal.App.4th 976 (1993). Since the purpose of the presumption is to protect the family unit, when such unit fails to exist, so does the reason behind the law. (I think the court tacitly recognizes that there is something unreasonable for a man to have sex with the wife of someone else, knock her up, ruin the marriage, and then say, “by the way, you pay the child support for this kid.”)

Having said all this, laws don’t operate in a vacuum. Laws are driven by facts and no two facts are alike. If you are presented with a situation where you are the husband, wife, or the third party come see us for advice as soon as possible. The longer you wait the worst your situation becomes. Laws are facts driven and facts are almost always tied to timelines. The marriage presumption and paternity laws can be very tricky

These issues can be very complicated. Contact the Edgar & Dow for a free initial consultation to discuss paternity rights. We have offices located in RiversideTemeculaAnaheim, and Palm Desert.


The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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