Divorce in CA w/ non bio child

[twins]

I'm in california, my wife and I had a rough break up and she was stubborn enough to avoid communication for years. During this time she had gotten pregnant by a one night stand. I had no knowledge of this until the child was 4 years old, when I finally got her to communicate and come to terms of proceeding with a divorce. She agreed to a simple straight forward divorce with no splitting of anything just one and done, but now there's the issue of the child. Which legally after 2 years in CA is mine regardless of a DNA test proving otherwise. She does not want the child's biological father involved in the child's life nor does he know he has a child. She wants full custody and wants a simple divorce. How do I proceed with this and how can I remove this child from my name as it's not my child? I'd appreciate any help here. Thank you all.

 

[LdiJ]

I'm in california, my wife and I had a rough break up and she was stubborn enough to avoid communication for years. During this time she had gotten pregnant by a one night stand. I had no knowledge of this until the child was 4 years old, when I finally got her to communicate and come to terms of proceeding with a divorce. She agreed to a simple straight forward divorce with no splitting of anything just one and done, but now there's the issue of the child. Which legally after 2 years in CA is mine regardless of a DNA test proving otherwise. She does not want the child's biological father involved in the child's life nor does he know he has a child. She wants full custody and wants a simple divorce. How do I proceed with this and how can I remove this child from my name as it's not my child? I'd appreciate any help here. Thank you all.

You would have to disestablish your paternity as part of the divorce process. Has it been two years since you discovered that the child existed? I suspect that you need an attorney on board.

 

[Zigner]

You would have to disestablish your paternity as part of the divorce process.

That will be extremely difficult (approaching impossible) in this situation for the OP.

 

[adjusterjack]

I had no knowledge of this until the child was 4 years old,

When was that? Now? Or have you known for two years.

If she concealed the child from you for 4 years and you just found out about it now, you may have some recourse.

If you've known about it for 2 years and did nothing, then the other posters may be correct about you being stuck with paternity.

Either way, get a lawyer. CA is a community property state. You're likely to get good and screwed without one no matter what she's telling you now.

 

[LdiJ]

That will be extremely difficult (approaching impossible) in this situation for the OP.

It depends in great part on when he discovered that the child existed. He needs to consult with an attorney rather than assuming that it will be impossible based on what someone on an internet forum said.

 

[Zigner]

It depends in great part on when he discovered that the child existed. He needs to consult with an attorney rather than assuming that it will be impossible based on what someone on an internet forum said.

I agree that he needs to consult with an attorney, but I can't entirely agree that when he found out about the child will have as large an impact as you assume it will.

 

[LdiJ]

I agree that he needs to consult with an attorney, but I can't entirely agree that when he found out about the child will have as large an impact as you assume it will.

That is actually a critical factor, but an attorney will confirm it one way or another.

 

[Zigner]

That is actually a critical factor, but an attorney will confirm it one way or another.

Are you familiar enough with California law (statutory and case law) to confidently make that statement?

 

[LdiJ]

Are you familiar enough with California law (statutory and case law) to confidently make that statement?

I am familiar enough with law in general to make that statement, since it is basic law 101. A person has no opportunity to challenge the paternity of a child that they do not know exists. However, it doesn't matter one bit what either one of us think on the subject, since it is far too important to take the word of people on an internet forum.

 

[Zigner]

I am familiar enough with law in general to make that statement...

Please review even just a bit more about California law.

 

[zddoodah]

but now there's the issue of the child. Which legally after 2 years in CA is mine regardless of a DNA test proving otherwise.

That's wrong. "[T]he child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the marriage." Cal. Fam. Code section 7540(a). Since you weren't cohabitating at either the time of conception or the time of birth, the presumption of paternity does not apply, and there is nothing to "disestablish."

I finally got her to communicate and come to terms of proceeding with a divorce. She agreed to a simple straight forward divorce

So...is there a divorce pending? Are you or is she represented by an attorney? If the case is pending, who is the petitioner, and who is the respondent? In your petition/response, did you check the box that there are no minor children of the marriage? What box did she check regarding minor children? What does the child's birth certificate say regarding paternity?

How do I proceed with this and how can I remove this child from my name as it's not my child? I'd appreciate any help here.

That depends. If, in your petition/response, neither of you has alleged that the child is a child of the marriage, then there's no issue. However, if one or both of you alleged that the child is a child of the marriage, then you need to retain counsel (and possibly amend your petition/response).

 

[Zigner]

That's wrong. "[T]he child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the marriage." Cal. Fam. Code section 7540(a). Since you weren't cohabitating at either the time of conception or the time of birth, the presumption of paternity does not apply, and there is nothing to "disestablish."

What about https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&sectionNum=7611 ?
Specifically: A person is presumed to be the natural parent of a child if the person 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) The presumed parent 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.

 

[zddoodah]

What about https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&sectionNum=7611 ?

FC 7612(a) states that, except as provided in 7540, et seq. and 7570, et seq. (which relates to declarations of paternity), the 7611 presumption is rebuttable and doesn't put a time limit on it. FC 7612(b) states that, if two or more conflicting presumptions arise under 7540, 7570 and 7611, "the presumption that on the facts is founded on the weightier considerations of policy and logic controls" (except that a presumption under 7540 may only be rebutted as provided in 7541). Note that 7612 became operative on 1/1/2020.

Despite the clunky (but typical) language the legislature used, the presumption of paternity by virtue of marriage alone is rebuttable. My prior comment was addressing the OP's assertion that the child, "legally after 2 years in CA is mine regardless of a DNA test proving otherwise," which is a clear reference to FC 7540, et seq.

If the OP returns and answers the questions I asked, I'll have further comment. Until then, if this is actually a contested issue in a pending divorce, it is critical that the OP be represented by legal counsel who is either fully-acquainted with the various statutory presumptions or can research relevant case authority.