New relationships during divorce in CA.

[tranquility]

Sorry, non-Ackbar, the court's power of presumption on this matter is in the statute. BOTH sections give the same presumption. I agree it is irrelevant to the presumption that one of the putatively presumed fathers is actually the biological father. The fact there is a biological father who, under the section I previously posted, can overcome (I like that word better here as the presumption is not a rebuttable presumption, but one with a specific way to rebut it.) the presumption only matters if we go to court.

So, ignoring the issue of the boyfriend actually being the biological parent, who is the presumed father?

Under section (a) the husband/ex300 is presumed to be the father. Under section (d) boyfriend is presumed to be the father.

Both are presumed, under the same statute, to be the father. That statute is the codification of a lot of very old common law combined with changing social and family structures. It reflects reality and how the legislature describes the realities they think in the public good in some way.

If that doesn't work, I believe they use a balancing test.

So, I wonder what you mean by legally is dad. Husband/ex300 wants to visit little child at the place in suburbia/city/mobile-home-park-down-by-the-river where OP/boyfriend/child live. What result if boyfriend says no?

 

[mistoffolees]

Sorry, non-Ackbar, the court's power of presumption on this matter is in the statute. BOTH sections give the same presumption. I agree it is irrelevant to the presumption that one of the putatively presumed fathers is actually the biological father. The fact there is a biological father who, under the section I previously posted, can overcome (I like that word better here as the presumption is not a rebuttable presumption, but one with a specific way to rebut it.) the presumption only matters if we go to court.

So, ignoring the issue of the boyfriend actually being the biological parent, who is the presumed father?

Under section (a) the husband/ex300 is presumed to be the father. Under section (d) boyfriend is presumed to be the father.

Both are presumed, under the same statute, to be the father. That statute is the codification of a lot of very old common law combined with changing social and family structures. It reflects reality and how the legislature describes the realities they think in the public good in some way.

If that doesn't work, I believe they use a balancing test.

So, I wonder what you mean by legally is dad. Husband/ex300 wants to visit little child at the place in suburbia/city/mobile-home-park-down-by-the-river where OP/boyfriend/child live. What result if boyfriend says no?

You're misreading all the statutes.

The husband is AUTOMATICALLY presumed to be the father. The putative Dad has the RIGHT TO CHALLENGE the husband's paternity. If the putative Dad manages to prove TO THE COURT that he meets the standards, he can become the father. But until he's gone to court, he is not the father.

 

[tranquility]

I had a whole class in statute reading. I believe it is you who misreads.

But, you might be talking about CA Family Code 7540:

Except 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.

With 7541 being the code section for testing of paternity.

Conclusively presumed. Why did they say that other than "is" ya'll so happy about?

Maybe Craig l. v. sandy s. (2004) 125 Cal.app.4th 36 ?

Then again, there mom and husband got back together and wanted to exclude boyfriend, so it's not the same thing as there was a court challenge by boyfriend.

 

[mistoffolees]

I had a whole class in statute reading. I believe it is you who misreads.

But, you might be talking about CA Family Code 7540:
With 7541 being the code section for testing of paternity.

Except 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.

Conclusively presumed. Why did they say that other than "is" ya'll so happy about?

Maybe Craig l. v. sandy s. (2004) 125 Cal.app.4th 36 ?

Then again, there mom and husband got back together and wanted to exclude boyfriend, so it's not the same thing as there was a court challenge by boyfriend.

Look, even your own quote above proves what I'm saying. The child is
conclusively presumed to be a child of the marriage. So Hubby is the legal father. What part of CONCLUSIVELY PRESUMED do you not understand?

You want to fall back on "why did they say 'conclusively presumed' rather than 'is'? Because 'conclusively presumed' means that it's presumed to be the case UNTIL PROVEN OTHERWISE. If they had said 'is the child of the marriage', then it would not be possible to prove otherwise.

You're doing really poorly for someone who claims to have had an entire class in statute reading.

Oh, and btw, you might not want to rely on a case that was reversed on appeal to support your argument.

 

[Ohiogal]

Look, even your own quote above proves what I'm saying. The child is
conclusively presumed to be a child of the marriage. So Hubby is the legal father. What part of CONCLUSIVELY PRESUMED do you not understand?

You want to fall back on "why did they say 'conclusively presumed' rather than 'is'? Because 'conclusively presumed' means that it's presumed to be the case UNTIL PROVEN OTHERWISE. If they had said 'is the child of the marriage', then it would not be possible to prove otherwise.

You're doing really poorly for someone who claims to have had an entire class in statute reading.

Oh, and btw, you might not want to rely on a case that was reversed on appeal to support your argument.

psst... it also requires the wife be cohabiting with husband to get the conclusive presumption. There is another area of statute to look at however. The portion dealing with the birth certificate. That may require the HUSBAND be listed as father if the mother is married.

 

[Zigner]

Seems to me that cannot be presumed to be the natural father if there is already somebody else who is presumed to be the natural father. The moment the child is BORN, the husband (w/in 300 days of course) is presumed to be the father. That happens before the child is brought in to the home and openly held to be the natural child. Since the child already HAS a natural father, there is no further need for a(nother) presumption of paternity.

 

[tranquility]

The 300 day rule is in the same statute as the taking into your home and holding him out to be your child. Both give the presumption of natural father to two different people in our facts.

Oh, and btw, you might not want to rely on a case that was reversed on appeal to support your argument.

Reversed on appeal? When was that? You better let the 4th circuit know. On 9/16/11, they released Neil S. v. Mary L. (D05777) which included (not a holding)[emphasis mine]:

Section 7611 describes presumptions of paternity that may be rebutted "in an appropriate action" by clear and convincing evidence. (§§ 7611, 7612, subd. (a).) Under subdivision (a) of section 7611, "a man is presumed to be the natural father of a child born during, or within 300 days after the termination of, his marriage to the child's mother." (Dawn D., supra, 17 Cal.4th at p. 937.) This presumption does not require any proof of cohabitation; rather, the only predicate is birth during a valid marriage or within 300 days after the marriage's termination. (Craig L. v. Sandy S. (2004) 125 Cal.App.4th36, 48 (Craig L.).) The section 7611, subdivision (a) presumption may be challenged only by the child, the mother or a presumed father. (§*7630, subd. (a);1 Dawn D.,
17 Cal.4th at pp. 937-938; Craig L., 125 Cal.App.4th at p. 48.)

Which part of the case was "overturned on appeal"?

 

[mistoffolees]

The 300 day rule is in the same statute as the taking into your home and holding him out to be your child. Both give the presumption of natural father to two different people in our facts.
Reversed on appeal? When was that? You better let the 4th circuit know. On 9/16/11, they released Neil S. v. Mary L. (D05777) which included (not a holding)[emphasis mine]:
Which part of the case was "overturned on appeal"?

California Family Law Appeals

Craig L. v. Sandy S. (2004, 4th District, San Diego) 125 Cal.App. 4th 36
Marital and functional paternity presumptions. Standing, rights of biological and psychological father to recognition of paternity over claims of maritally-presumed father. Reversed. (Appellant)

I guess your class on looking up references didn't go any better than your class in statute reading.

 

[tranquility]

The more wrong you are the more abusive you seem to become. Why is that?

Originally Posted by tranquility View Post
The 300 day rule is in the same statute as the taking into your home and holding him out to be your child. Both give the presumption of natural father to two different people in our facts.
Reversed on appeal? When was that? You better let the 4th circuit know. On 9/16/11, they released Neil S. v. Mary L. (D05777) which included (not a holding)[emphasis mine]:
Which part of the case was "overturned on appeal"?
California Family Law Appeals
Quote:
Craig L. v. Sandy S. (2004, 4th District, San Diego) 125 Cal.App. 4th 36
Marital and functional paternity presumptions. Standing, rights of biological and psychological father to recognition of paternity over claims of maritally-presumed father. Reversed. (Appellant)
I guess your class on looking up references didn't go any better than your class in statute reading.

Hilarious. In my class on references went to original sources first. I'm sticking with the 4th appellate district over your theory. But, pretend we will go to your "reference". Re-read it again. The "reference" site you used is a private attorney's site. She was listing the cases where she has a published opinion. Her name is on the opinion I referenced. She appealed it from the district court and won.

Reading is FUNdamental.

 

[Zigner]

But, it doesn't change the fact that bringing a child in to your home and holding said child out to be your natural child does NOT make you the natural father of that child if the child already HAS a presumed natural father.

 

[tranquility]

But, it doesn't change the fact that bringing a child in to your home and holding said child out to be your natural child does NOT make you the natural father of that child if the child already HAS a presumed natural father.

Um...perhaps you should argue the point with the California Supreme Court. They don't seem to make your distinction.

In re Jesusa V. (2004) 32 C4th 588 has three holdings, in holding B, they pretty much argue (Well, they're the Supremes. They said.) these are competing presumptions and we have to fall to 7612 to determine the result.

7612. (a) Except as provided in Chapter 1 (commencing with Section
7540) and Chapter 3 (commencing with Section 7570) of Part 2 or in
Section 20102, a presumption under Section 7611 is a rebuttable
presumption affecting the burden of proof and may be rebutted in an
appropriate action only by clear and convincing evidence.
(b) If two or more presumptions arise under Section 7610 or 7611
that conflict with each other, or if a presumption under Section 7611
conflicts with a claim pursuant to Section 7610, the presumption
which on the facts is founded on the weightier considerations of
policy and logic controls.
(c) The presumption under Section 7611 is rebutted by a judgment
establishing paternity of the child by another man.