[hukilau]

I live in California. I have been married for 11 years and have 3 children with my husband. However, I am now 8 mos pregnant from the result of an affair. (99% sure of this because husband had a vasectomy). My questions are regarding the rights of the biological father assuming it is the man who is not my husband.
1) What rights does he have with this child?
2) Is there a time limit on which he has to act?
3) Can i be required to allow paternity testing if he requests?

I read an article titled "Marriage Trumps Biology in California Paternity Fight" Case: (Dawn D. v. Jerry K., 952 P.2d 1139 (Cal. 1998).) QUOTE "Dealing a blow to advocates for fathers' rights, the California Supreme Court recently clung to age-old legal concepts of family and found that the biological father of a child born out of wedlock has no constitutional right to seek to establish a relationship with the child when the mother is married to another man."

Is this possible that a biological father can be legally excluded from being an active part in the life of his biological child? I was given an answer on a previous question which stated the bio father could even fight and most likely win to get the childs last name legally changed to his own if done before the child had a chance to identify with the name. Is that true? It seems very contradictory to what the above case jugdement stated.

thanks for your time

[aaron]

The problem seems to be that your former thread suggested that you wanted the biological father to gain legal rights, and wanted to know how that could occur. Now you seem to be suggesting the opposite.

So please explain - what's your goal here? Are you intending to remain married and trying to exclude the biological father from the child's life? Divorcing and wondering what will happen if your husband asserts paternity? Divorcing and wondering what happens if your husband denies paternity? Something else?

[hukilau]

I am staying with my husband and I want to know what the bio fathers rights will be or will not be. I have heard both that he can have no rights, and also just the opposite. Im not sure what I want to do, I only have a few short weeks to decide, so Im checking into what my options are exactly. If I know ahead of time what the rights are, and what would most likely be granted or not granted, then I can be prepared to be either taken to court, or possibly avoid it altogether.

Also, I re-read my previous thread, but dont see what it was exactly in the thread that suggested I wanted him to gain legal rights? I am giving the child my married name, and I wanted to make sure he couldnt fight me and win for a name change. So, is the answer I recieved correct? That he can?

[CourtClerk]

The father of this child has 18 years in order to sue you for paternity. At that time, the court will order a paternity test. Depending on the age of the child when that happens, the judge may decide that the child is better off with your husband as the child's father. However, given you've already had an affair, when you get a divorce and "dad" decides to sue you, and/or your husband then disputes paternity, the court will not bastardize a child. This kid is going to have someone as a father.

If paternity is established between your boyfriend and the child, then he can then in the same paternity petition request the child's last name be changed. Chances of it being granted? Again, depends on the age of the child.

[wondermother]

I am going through a very similar thing, except I am in another state. I am finding that this website gives everyone the same answer, and I found more information searching on my state's website.

It also may help to call your local Social Services and ask as an anonymous caller.

[GV70]

7646. (a) Notwithstanding any other provision of law, a judgment
establishing paternity may be set aside or vacated upon a motion by
the previously established mother of a child, the previously
established father of a child, the child, or the legal representative
of any of these persons if genetic testing indicates that the
previously established father of a child is not the biological father
of the child. The motion shall be brought within one of the
following time periods:
(1) Within a two-year period commencing with the date on which the
previously established father knew or should have known of a
judgment that established him as the father of the child or
commencing with the date the previously established father knew or
should have known of the existence of an action to adjudicate the
issue of paternity, whichever is first, except as provided in
paragraph (2) or (3) of this subdivision.
(2) Within a two-year period commencing with the date of the child'
s birth if paternity was established by a voluntary declaration of
paternity. Nothing in this paragraph shall bar any rights under
subdivision (c) of Section 7575.
(3) In the case of any previously established father who is the
legal father as a result of a default judgment as of the effective
date of this section, within a two-year period from January 1, 2005,
to December 31, 2006, inclusive.
(b) Subdivision (a) does not apply if the child is presumed to be
a child of a marriage pursuant to Section 7540.
(c) Reconsideration of a motion brought under paragraph (3) of
subdivision (a) may be requested and granted if the following
requirements are met:
(1) The motion was filed with the court between September 24,
2006, and December 31, 2006, inclusive.
(2) The motion was denied solely on the basis that it was
untimely.
(3) The request for reconsideration of the motion is filed on or
before December 31, 2009.

[GV70]

In California, the presumption can be challenged by a presumptive father or child for any reason as long as it is raised within two years of the child’s birth. In the same period, the mother can challenge it only if the biological father has filled a written declaration acknowledging paternity. In either case, blood testing is used to resolve the paternity dispute. Once the two year period has elapsed, however, the presumption is conclusive, unless the common law grounds can be established.

[ecmont4413]

[COLOR="Navy"]So if a married woman has a baby from another man besides her husband and at the time of birth, the husband finds out (this baby is not mine, ex. married couple is white and baby born is mixed (black and white) yet he still continues to raise this child as if the child was his, will he still have a 2 year period to deny being the father, inorder so that he is not held responsible for child support once a DNA establishes he is not the BIO father? What if he knows that he is not the father and waits until the child is 5 yrs old and then he realizes that he no longer wants to be a father for this child. What happens to this child? Can the married mother now get CS agency to locate BIO father, so he can pay CS?[/COLOR]