New relationships during divorce in CA.

[tranquility]

There is no need for a challenge, or dire warnings from list members, regarding the paternity of the child until and unless it becomes an issue.

The thread claimed the husband could sue the OP and father and gain custody.

We all agree there could be a suit. What are the odds of the presumptive father gaining custody if all the evidence shows it's not his?

Info edit:
Ohiogal too? Goodness. Am I going to have to find some citations?

 

[Ohiogal]

There is no need for a challenge, or dire warnings from list members, regarding the paternity of the child until and unless it becomes an issue.

The thread claimed the husband could sue the OP and father and gain custody.

We all agree there could be a suit. What are the odds of the presumptive father gaining custody if all the evidence shows it's not his?

Info edit:
Ohiogal too? Goodness. Am I going to have to find some citations?

I said nothing wrong. Husband is presumed to be daddy. The divorce will be delayed. If OP is smart, she will have her boyfriend file to intervene in the divorce to have paternity established and husband's paternity disestablished. Spousal support will not happen because it ends upon cohabitation. Pregnant by another man pretty much proves the whole cohabitation portion. And adultery is not kosher. At least not based on my understanding of the word kosher. Was it blessed by a rabbi?

Of course if she miscarries or has an abortion then there will be no baby. BUT if there a child the above applies. And while pregnant, divorce will not be finalized.

 

[CourtClerk]

I said nothing wrong. Husband is presumed to be daddy. The divorce will be delayed. If OP is smart, she will have her boyfriend file to intervene in the divorce to have paternity established and husband's paternity disestablished. Spousal support will not happen because it ends upon cohabitation. Pregnant by another man pretty much proves the whole cohabitation portion. And adultery is not kosher. At least not based on my understanding of the word kosher. Was it blessed by a rabbi?

Of course if she miscarries or has an abortion then there will be no baby. BUT if there a child the above applies. And while pregnant, divorce will not be finalized.

Divorces can become final in CA while a woman is pregnant. A lot of judges don't like to do it, but there is nothing prohibiting it from happening.

 

[Zigner]

Pregnant by another man pretty much proves the whole cohabitation portion.

I disagree. One is not required to live with a person in order to have sex. Heck, they don't even have to be in each other's house...

 

[tranquility]

I said nothing wrong. Husband is presumed to be daddy

Which is different from:

Congrats to your husband on his new child.

The way the law would handle such a dispute is found at Family Code 7541

(a) Notwithstanding Section 7540, if the court finds that the
conclusions of all the experts, as disclosed by the evidence based
on blood tests performed pursuant to Chapter 2 (commencing with
Section 7550), are that the husband is not the father of the child,
the question of paternity of the husband shall be resolved
accordingly.
(b) The notice of motion for blood tests under this section may be
filed not later than two years from the child's date of birth by the
husband, or for the purposes of establishing paternity by the
presumed father or the child through or by the child's guardian ad
litem. As used in this subdivision, "presumed father" has the meaning
given in Sections 7611 and 7612.
(c) The notice of motion for blood tests under this section may be
filed by the mother of the child not later than two years from the
child's date of birth if the child's biological father has filed an
affidavit with the court acknowledging paternity of the child.
(d) The notice of motion for blood tests pursuant to this section
shall be supported by a declaration under oath submitted by the
moving party stating the factual basis for placing the issue of
paternity before the court.
(e) Subdivision (a) does not apply, and blood tests may not be
used to challenge paternity, in any of the following cases:
(1) A case that reached final judgment of paternity on or before
September 30, 1980.
(2) A case coming within Section 7613.
(3) A case in which the wife, with the consent of the husband,
conceived by means of a surgical procedure.

 

[Ohiogal]

Which is different from:


The way the law would handle such a dispute is found at Family Code 7541

Not really, no. Hubby is presumed to be daddy. Until the presumption is OVERTURNED. So until that happens -- after the baby is born, hubby has a new child.

 

[tranquility]

Sorry, the two concepts are profoundly different in a legal and practical sense.

I can provide any number of citations from controlling cases to show some of those differences. I thought the code showing how the presumption can be rebutted would stop the claim of "is" the father or "has" a child, but I was mistaken.

Lesson learned.

 

[mistoffolees]

Sorry, the two concepts are profoundly different in a legal and practical sense.

I can provide any number of citations from controlling cases to show some of those differences. I thought the code showing how the presumption can be rebutted would stop the claim of "is" the father or "has" a child, but I was mistaken.

Lesson learned.

You apparently don't understand the concept of 'presumption' or 'rebutted'.

Under the law (even the code you cited), the husband is automatically the father UNTIL someone takes action to rebut that presumption. They would have to provide evidence that he's NOT the father. Until then, he will automatically be Dad.

 

[tranquility]

I'll let my posts stand as they are and even claim I know what a presumption is.

Wild Hypothetical:
1. Pretend OP and child are taken to boyfriend's home from the hospital by adulterer boyfriend with the intent for them to live there. (With consent of mom etc.)
2. Boyfriend represents to all the child (of which he is the biological father) is his natural child.

Who is the presumed father?

 

[mistoffolees]

I'll let my posts stand as they are and even claim I know what a presumption is.

Wild Hypothetical:
1. Pretend OP and child are taken to boyfriend's home from the hospital by adulterer boyfriend with the intent for them to live there. (With consent of mom etc.)
2. Boyfriend represents to all the child (of which he is the biological father) is his natural child.

Who is the presumed father?

Legally? Mom's husband - until they get a court order that BF is the father.

 

[tranquility]

Legally? Mom's husband - until they get a court order that BF is the father.

Admiral Ackbar you are not.

I assume your answer is based, in some way, on the CA Family Code at 7611(a):

A man is presumed to be the natural father of a child if he
meets the conditions provided in Chapter 1 (commencing with Section
7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any
of the following subdivisions:
(a) He and the child's natural mother are or have been married to
each other and the child is born during the marriage, or within 300
days after the marriage is terminated by death, annulment,
declaration of invalidity, or divorce, or after a judgment of
separation is entered by a court.

, right? Wassamatter, you don't like 7611(d)?

(d) He receives the child into his home and openly holds out the
child as his natural child.

So, we have two who are conclusively presumed to be the natural father. How shall we resolve this conundrum?

 

[I'mTheFather]

Oh and adultery is never kosher.

Is that because it has something to do with pigs?

 

[CourtClerk]

Admiral Ackbar you are not.

I assume your answer is based, in some way, on the CA Family Code at 7611(a):
, right? Wassamatter, you don't like 7611(d)?


So, we have two who are conclusively presumed to be the natural father. How shall we resolve this conundrum?

One paragraph up:
(c) After the child's birth, he and the child's natural mother
have married, or attempted to marry, each other by a marriage
solemnized in apparent compliance with law, although the attempted
marriage is or could be declared invalid, and either of the following
is true:
(1) With his consent, he is named as the child's father on the
child's birth certificate.
(2) He is obligated to support the child under a written voluntary
promise or by court order.
>>>>>>> (d) He receives the child into his home and openly holds out the
child as his natural child. <<<<<<<<<
(e) If the child was born and resides in a nation with which the
United States engages in an Orderly Departure Program or successor
program, he acknowledges that he is the child's father in a
declaration under penalty of perjury, as specified in Section 2015.5
of the Code of Civil Procedure. This subdivision shall remain in
effect only until January 1, 1997, and on that date shall become
inoperative.
(f) The child is in utero after the death of the decedent and the
conditions set forth in Section 249.5 of the Probate Code are
satisfied.

 

[tranquility]

2611(c) is not related to 2611(d). (Or, to 2611(a) for that matter.)

 

[mistoffolees]

Admiral Ackbar you are not.

I assume your answer is based, in some way, on the CA Family Code at 7611(a):
, right? Wassamatter, you don't like 7611(d)?


So, we have two who are conclusively presumed to be the natural father. How shall we resolve this conundrum?

There's no conundrum. Your section 7514 says that the putative father has the right to bring in experts to establish that he's the father. He has the right to try to prove that the child has lived with him. He has the right to ask for a DNA test. He has the right to do a lot of things.

But until the court says otherwise, hubby is Dad. That's what 'presumed' means.