legal parental responsibility

Isn't it true that if a couple is married and has a child that child is legally the husband's child even if the wife had an affair and DNA can prove it's not the husbands biological child? Is there a specific law and date this was enacted?

I would like to know this to. I have a friend in the same situation. The mother is in NY and the bio dad is in FL.
THANK YOU

[LegalBeagle]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by sgunn:
[b]Isn't it true that if a couple is married and has a child that child is legally the husband's child even if the wife had an affair and DNA can prove it's not the husbands biological child? Is there a specific law and date this was enacted?[/b]<HR></BLOCKQUOTE>

When a baby is born to a married couple the husband is 'presumed' to be the father. He has between 1 and 3 years to contest that presumption (depending on state). After that time, no DNA test proving otherwise will make a difference legally. There are a few exceptions, but not worth talking about.

[I AM ALWAYS LIABLE]

My response:

Detailed information concerning:
PRESUMPTION OF PATERNITY
(California ONLY)

Various statutes presume a particular person is the child's parent and thus the person from whom the statutory child support duty is owed. By way of overview:

Ca Fam § 7540 "conclusive" presumption: Subject to Ca Fam § 7541 (expert conclusions based on blood tests showing otherwise), the child of a wife cohabiting at time of conception with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. [Ca Fam § 7540; see Michael H. v. Gerald D. (1989) 491 U.S. 110, 129-130, 109 S.Ct. 2333, 2345--upholding presumption's facial constitutionality; compare Dawn D. v. Super.Ct. (Jerry K.) (1998) 17 Cal.4th 932, 935, 72 Cal.Rptr.2d 871, 872--§ 7540 presumption inapplicable where spouses not cohabiting--i.e., living together as husband and wife--at time of conception]

Although the § 7540 presumption is denominated "conclusive," it is subject to challenge under narrow circumstances (below). [See Dawn D. v. Super.Ct. (Jerry K.), supra, 17 Cal.4th at 937, 72 Cal.Rptr.2d at 873, fn. 4]

a) Sterility exception: A husband may dispute this otherwise conclusive presumption at any time by proving he was impotent or sterile at the time of conception. [Ca Fam § 7540; Marriage of Freeman (1996) 45 Cal.App.4th 1437, 1444, 53 Cal.Rptr.2d 439, 444]

b) Blood tests exception; limited to § 7541 tests: The § 7540 "conclusive" presumption may also be challenged by requesting blood tests within two years of the child's birth (Ca Fam § 7541(b) & (c)). [Ca Fam § 7540--"Except as provided in Section 7541 . . ."; and see Ca Fam § 7541(a)]

But, only blood tests authorized by Ca Fam § 7541can overcome the presumption. Otherwise, it is immaterial that blood test results show the biological father to be someone other than the § 7540 presumptive father. [Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 240, 71 Cal.Rptr.2d 399, 403; Miller v. Miller (1998) 64 Cal.App.4th 111, 119, 74 Cal.Rptr.2d 797, 801]

1/ Standing to request blood tests: Standing to make a motion for blood tests pursuant to Ca Fam § 7541 is limited to the husband, child, mother and a "presumed father" under Ca Fam §§ 7611 and 7612. [Ca Fam § 7541(b) & (c); Rodney F. v. Karen M., supra, 61 Cal.App.4th at 238, 71 Cal.Rptr.2d at 402--alleged biological father without §§ 7611/7612 presumed father status had no standing to request blood tests in attempt to defeat § 7540 conclusive presumption; see also Miller v. Miller, supra, 64 Cal.App.4th at 119, 74 Cal.Rptr.2d at 801 (same)]

Blood tests performed at someone else's request are of no legal effect. [Rodney F. v. Karen M., supra; Miller v. Miller, supra]

2/ Pursuant to court order: Blood tests offered to defeat the § 7540 presumption must be ordered by the court and performed by court-appointed experts; otherwise, the tests have no legal significance regardless of the results. [Ca Fam §§ 7541(a), 7551, 7552; Miller v. Miller, supra, 64 Cal.App.4th at 119, 74 Cal.Rptr.2d at 801--blood testing performed by alleged biological father's privately-retained examiner of no legal effect]

3/ Two-year limit on blood tests rebuttal: Further, blood test evidence may be used to overcome the § 7540 presumption only if the motion for blood tests is filed within two years of the child's birth. [Ca Fam § 7541(b) & (c); Marriage of Freeman (1996) 45 Cal.App.4th 1437, 1444, 53 Cal.Rptr.2d 439, 444 (H failed to timely request blood testing); see also Miller v. Miller, supra, 64 Cal.App.4th at 119, 74 Cal.Rptr.2d at 801 (tests untimely because not "performed" within 2 years of child's birth)]

IAAL

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