Schwarzenegger Paternity and What It Means Under California Law

Posted: June 9, 2011 in family law
Tags: , , , ,

I have not commented on the former governor’s announcement about his son with the former housekeeper because I felt there was enough out there about it already.  However, this week I read an article in the CEB blog written by Julie Brook, Esq., that I would like to share a bit of with you.

Ms. Brook reminds us that California law has a “conclusive” presumption of paternity for children born to a married woman.   There are four elements that must all exist at the time of a child’s birth to trigger application of this presumption under Family Code Section 7540.  They are:

  • The mother is in a valid marriage;
  • The mother is living with her husband;
  • Her husband is not sterile; and
  • Her husband is not impotent.
If all of these elements are in place when the child is born, the child is presumed to be that of the mother’s husband. Any rebuttal of the presumption through a motion for blood tests must be made within two years of the child’s birth per Family Code Section 7541.
It appears that the mother and her husband were living together at the time of the child’s birth and no paternity action was filed within the two year’s after the child’s birth.  Assuming that the husband was not sterile or impotent at the time of the birth, the child is the legal child of this marriage and the mother’s former husband is the legal father of the child pursuant to California law.
This happens in California more than people realize.  Children are born into a marriage and the husband may not be the biological father but he is the legal father unless an action is filed within the two year time period from the child’s birth.  This is in my opinion an antiquated law and I have seen this law destroy families and children’s lives leaving the children with a legal father who has absolutely no relationship with the child and the biological father who has no obligation to support, nurture or acknowledge their child.
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