[NSatible916]

My husband and I have been separated for a year now. We are currently working on reconcilling the marriage and have been for months now. During our separation he was with someone else and she ended up pregnant. I know she can NOT add his name to the birth certificate without his consent or proof of paternity, however, can she under CALIFORNIA law give the baby my husband's last name without his consent or proof of paternity?

Just to add my two cents, and not that anyone out there cares or will value my opinion, I just felt the need to get this off my chest After reading the forums and seeing how many people are married and either the wife is pregnant by another man or the husband is having a baby by another woman as in my case, I am floored! What ever happened to having morals? I am amazed at how many people don't value marriage, whether it be theirs or someone else's. Not to mention the bigger picture here, the children. By the way, the girl that is pregnant by my husband knew he had a wife and children at home, she just simply did not care. Women, how are we raising our daughters? I know after all the pain and heartache this situation has brought on me, it made me think twice. I have 2 little girls that are growing up real fast!

[Clair Bonner]

My husband and I have been separated for a year now. We are currently working on reconcilling the marriage and have been for months now. During our separation he was with someone else and she ended up pregnant. I know she can NOT add his name to the birth certificate without his consent or proof of paternity, however, can she under CALIFORNIA law give the baby my husband's last name without his consent or proof of paternity?

Just to add my two cents, and not that anyone out there cares or will value my opinion, I just felt the need to get this off my chest After reading the forums and seeing how many people are married and either the wife is pregnant by another man or the husband is having a baby by another woman as in my case, I am floored! What ever happened to having morals? I am amazed at how many people don't value marriage, whether it be theirs or someone else's. Not to mention the bigger picture here, the children. By the way, the girl that is pregnant by my husband knew he had a wife and children at home, she just simply did not care. Women, how are we raising our daughters? I know after all the pain and heartache this situation has brought on me, it made me think twice. I have 2 little girls that are growing up real fast!

In response to your question, "however, can she under CALIFORNIA law give the baby my husband's last name without his consent or proof of paternity?" the answer is yes. She can name the child anything she chooses.

Nothing in the law requires that a minor child bear, or not bear, the paternal surname; nor is there any authority giving preference to the father's surname over the mother's. Any common law notion that the father has a "primary right" or "protectible interest" in having minor children of the marriage bear his surname has been abolished. [Marriage of Schiffman (1980) 28 Cal.3d 640, 647, 169 Cal.Rptr. 918, 922; Marriage of Douglass (1988) 205 Cal.App.3d 1046, 1054, 252 Cal.Rptr. 839, 843]

Instead, when the parents contest the surname issue, the sole consideration is the child's best interest. [Marriage of Schiffman, supra, 28 Cal.3d at 647, 169 Cal.Rptr. at 922; see Marriage of McManamy & Templeton (1993) 14 Cal.App.4th 607, 609, 18 Cal.Rptr.2d 216, 217]

The factors to consider in determining the child's best interest on the surname issue include:

• the length of time the child has used the existing surname;

• the effect of a name change on preservation of the child's relationship with the other parent; and

• an identification of the child as part of a family unit. [Marriage of Schiffman, supra, 28 Cal.3d at 647, 169 Cal.Rptr. at 922-923; see Marriage of McManamy & Templeton, supra, 14 Cal.App.4th at 609-610, 18 Cal.Rptr.2d at 217]

The court will also balance the "symbolic role that a surname may play in easing relations with a new family" against "the importance of maintaining the biological father-child relationship"; and should evaluate the "embarrassment or discomfort that a child may experience when he [or she] bears a surname different from the rest of his [or her] family . . ." [Marriage of Schiffman, supra, 28 Cal.3d at 642, 169 Cal.Rptr. at 923; see also, Marriage of McManamy & Templeton 14 Cal.App.4th at 610, 18 Cal.Rptr.2d at 217]

The maternal surname plays a significant role in supporting the mother-child relationship where the father is the custodial parent or where the custodial mother goes by her birth-given name. [Marriage of Schiffman, supra, 28 Cal.3d at 647, 169 Cal.Rptr. at 923] In this regard, no authority gives the mother's surname less importance because it is the surname of a former husband rather than a birth-given name. [Marriage of McManamy & Templeton, supra, 14 Cal.App.4th at 611, 18 Cal.Rptr.2d at 218]

Again, the surname contest must turn on the child's best interest. If the child was given the mother's surname at birth and has since used that name (even if the mother's maiden name from a former marriage), the best interest scale tips in favor of maintaining that surname at the parents' dissolution or separation; and this is particularly so where the same surname is used by the child's siblings (children of the mother's former marriage) with whom the child lives for a substantial portion of each year. [Marriage of McManamy & Templeton, supra--father's mere "unhappiness" with surname "Templeton" (custodial mother's surname from former marriage) insufficient ground to have child's surname changed to "McManamy-Templeton"]

"We note that [child] does bear father's name as part of her own, albeit as a middle name rather than a surname. More importantly, [child's] understanding of her father's role in her life will not be based solely on her surname, but will develop in light of his conduct and attitudes, particularly his active involvement in her life." [Marriage of McManamy & Templeton, supra, 14 Cal.App.4th at 611, 18 Cal.Rptr.2d at 218 (brackets added)]

I take great interest in your comment, "What ever happened to having morals? I am amazed at how many people don't value marriage, whether it be theirs or someone else's. Not to mention the bigger picture here, the children. By the way, the girl that is pregnant by my husband knew he had a wife and children at home, she just simply did not care."

Where was your husband in that comment? Did your husband care? Undoubtedly, no.

[NSatible916]

Clair, thank you so much for the information. It is greatly appreciated.

To answer your question, No he did not care either. I consider BOTH of them very selfish people. It is a horrible situation to be in and I wouldn't wish this on my worst enemy. I know we tend to instantly blame the other woman and tend to let the man slide, but that is not what I am trying to do. It was his responsibility to protect our marriage and family and he did not. When it comes down to it he made the promise of marriage to me and it was him that broke that promise. I just don't understand why after a woman finds out that a man has a wife and family at home, and even after the man breaks off the affair with her, she still tries to pursue that man and has no consideration for the other innocent people/kids involved and then to bring another child into this mess, what are we thinking? I cannot change the situation at hand. What has happened has happened and now I have to move forward and make the best decisions I can for my family and my marriage. I don't plan on adding to the divorce statistics any time soon. Despite the choices that my husband made, I still love him very much and feel that our marriage and family deserve for us to try to make this work.

I hope I have not offended anyone, I am hurt and angry and just felt like I needed to voice my mind at the time. These are only my opinions and I understand that everyone's situation is different. I do value other peoples opinions. It helps me to keep an open mind.

Thank you again Clair

[Clair Bonner]

Clair, thank you so much for the information. It is greatly appreciated.

To answer your question, No he did not care either. I consider BOTH of them very selfish people. It is a horrible situation to be in and I wouldn't wish this on my worst enemy. I know we tend to instantly blame the other woman and tend to let the man slide, but that is not what I am trying to do. It was his responsibility to protect our marriage and family and he did not. When it comes down to it he made the promise of marriage to me and it was him that broke that promise. I just don't understand why after a woman finds out that a man has a wife and family at home, and even after the man breaks off the affair with her, she still tries to pursue that man and has no consideration for the other innocent people/kids involved and then to bring another child into this mess, what are we thinking? I cannot change the situation at hand. What has happened has happened and now I have to move forward and make the best decisions I can for my family and my marriage. I don't plan on adding to the divorce statistics any time soon. Despite the choices that my husband made, I still love him very much and feel that our marriage and family deserve for us to try to make this work.

I hope I have not offended anyone, I am hurt and angry and just felt like I needed to voice my mind at the time. These are only my opinions and I understand that everyone's situation is different. I do value other peoples opinions. It helps me to keep an open mind.

Thank you again Clair

Sounds like an episode from my favorite television show, "Desperate Housewives." One of the "wives" is going through this, and her marriage is teetering.

You're welcome, and good luck!

[rmet4nzkx]

My husband and I have been separated for a year now. We are currently working on reconcilling the marriage and have been for months now. During our separation he was with someone else and she ended up pregnant. I know she can NOT add his name to the birth certificate without his consent or proof of paternity, however, can she under CALIFORNIA law give the baby my husband's last name without his consent or proof of paternity?

Just to add my two cents, and not that anyone out there cares or will value my opinion, I just felt the need to get this off my chest After reading the forums and seeing how many people are married and either the wife is pregnant by another man or the husband is having a baby by another woman as in my case, I am floored! What ever happened to having morals? I am amazed at how many people don't value marriage, whether it be theirs or someone else's. Not to mention the bigger picture here, the children. By the way, the girl that is pregnant by my husband knew he had a wife and children at home, she just simply did not care. Women, how are we raising our daughters? I know after all the pain and heartache this situation has brought on me, it made me think twice. I have 2 little girls that are growing up real fast!

While this is not your question but since you made reference to your family. If you are separated and do not already have a support order for your children, get one in place before this other child is born, that way your child/ren will be considered first when they compute child support for that child/ren after paternity is proved or he signs an acknowledgement of paternity which he should not do unless there is a DNA test first. This is important because any reconcilliation is unlikely to last and your children could suffer for his infidelity in the long run. If you do not have an attorney, you can go to the Family Law Faciliator's office at your county Superior Court for assistance in filing for child support.

[NSatible916]

Hi Clair.

The baby was born last Saturday, October 14. I have called the Department of Child Support Services here in Sacramento and she told me to come in right away also because right now they are setting court dates anywhere from 6-12 months. If we do remain married, won't they still take in consideration for the 2 children we already have? I suppose though then my income also comes into play. He has not signed anything and doesn't plan to until paternity is prooven, which I suppose will happen when she files for child support. Yes, my life has turned into somewhat of a soap opera!

[rmet4nzkx]

Hi Clair.

The baby was born last Saturday, October 14. I have called the Department of Child Support Services here in Sacramento and she told me to come in right away also because right now they are setting court dates anywhere from 6-12 months. If we do remain married, won't they still take in consideration for the 2 children we already have? I suppose though then my income also comes into play. He has not signed anything and doesn't plan to until paternity is prooven, which I suppose will happen when she files for child support. Yes, my life has turned into somewhat of a soap opera!

Get down to apply for child support first, before she does, otherwise her child will take away from what your children will receive. The date of your application is what counts, not when your court date is. If she already applied to establish paternity, they will use that date, it wil go into effect after DNA proves paternity. If you haven't reconcilled, don't count on it. The will count your income too and the amount of parenting hours to compute child support.

[libra23]

This happened to me too. The only difference is that the other woman put my husbands name on the birth certificate without him being there. We just found out today and I know that is illegal but we don't know what to do about it. If you have any information regarding how she was able to accomplish this or how we deal with it now I would appreciate it.
I understand what you are going through, is he going to give up his rights or see the child?