Bigal45 said:
What is the name of your state? California My wife had affair but we are still married and living with each other but she is pergnant by other guy. He doesn't want nothing to do with her or baby. He wanted her to have abortion but she doesn't believe in it. So sent we are trying work out are marriage I wanted to know how can I adopt the baby or can I just put my name on the birth certificate sent we are legally marriage. Does he have to sign his right way before, I can do anything. Can you help me.
thank you
Bigal45
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My response:
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:
Cal. Family code § 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," there are certain limits (including a "constitutional override") on its application (below). [See Dawn D. v. Super.Ct. (Jerry K.), supra, 17 Cal.4th at 937, 72 Cal.Rptr.2d at 873, fn. 4; Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1200-1201, 92 Cal.Rptr.2d 294, 296]
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]
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 § 7541, as explained below, can 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]
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]
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]
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)]
"Constitutional override"; balancing state and private interests:
Even absent a recognized rebuttal (above), as a matter of due process, § 7540 will not be applied when it would not further the statute's underlying policies of preserving the integrity and stability of an extant marital family, protecting children from the stigma of "illegitimacy," and promoting individual rather than State responsibility for child support . . . as where the ostensible § 7540 presumptive father (even if an alleged biological father) never developed a parental relationship with the child and the only established parent-child relationship is with a third person. [Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1200-1201, 92 Cal.Rptr.2d 294, 296; In re Kiana A. (2001) 93 Cal.App.4th 1109, 1115, 113 Cal.Rptr.2d 669, 675]
In practice, courts adopt a case-by-case approach that involves a weighing of the competing state and private interests in applying vs. not applying the presumption; and will not apply the presumption under facts that would yield "absurd results." [In re Lisa R. (1975) 13 Cal.3d 636, 648-651, 119 Cal.Rptr. 475, 483-485]
Key factors in the balancing include whether there is a marital family unit remaining to be protected; whether there is an existing parent-child relationship between the child and § 7540 "presumed" father or, instead, a third person with alleged presumptive (or biological) parentage status; and whether the child's interest in receiving support would best be promoted by applying or not applying the presumption. [Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, 1237-1238, 34 Cal.Rptr.2d 868, 871; see Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1217, 92 Cal.Rptr.2d 294, 309]
Addtionally, it's also boloney to say that signing a birth certificate, even if you know you're not the father, is fraud! It is not. California encourages paternity - - even "putative" paternity, as discussed above. Why? Because California doesn't want the child on Welfare, and wants "someone" to go after for child support.
Because "policy and logic" under the particular facts control the outcome, the weighing process may tip the scales in favor of a non-biological presumptive father as against the competing claim of a biological presumptive father. Biological paternity is not necessarily determinative. [In re Kiana A., supra, 93 Cal.App.4th at 1117-1118, 113 Cal.Rptr.2d at 677-678--§ 7611(d) presumptive father (receiving child into home and acknowledging as his natural child) prevailed over alleged biological father with § 7611(c) presumed parent status (marriage and name on birth certificate); see also Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1116-1117, 39 Cal.Rptr.2d 535, 539--§ 7611(d) presumed father prevailed over biological father's § 7611(a) presumed parent status]
IAAL