I Have a Child with a Married Woman

[SingleDad30]

Thank you for your advice CourtClerk. Can you please explain this statement "Not to mention, that the OP wouldn't even be ABLE to adopt the child through means of step parent adoption for some time". Does this mean that I would have to file for adoption??

So if the mother and I (biological father) want to live together with the child, can the legal father seek custody of the child? Does he need to continue to live in San Diego in order to get the custody? What happens if he plans to move to another state?

My daughther has a great relationship with me. She likes me a lot (even thou she doesn' know that I am her father). I would say that her relationship is me is better than what she has with her legal father.

[CourtClerk]

Thank you for your advice CourtClerk. Can you please explain this statement "Not to mention, that the OP wouldn't even be ABLE to adopt the child through means of step parent adoption for some time". Does this mean that I would have to file for adoption??

Just the opposite. What you should do is sue the mother for paternity. No court in their right mind is going to grant a step parent adoption to a newly married couple, however, you do have the right to assert paternity and force the issue that way.

So if the mother and I (biological father) want to live together with the child, can the legal father seek custody of the child?

At this point he can, because he's the legal father of the child.

Does he need to continue to live in San Diego in order to get the custody?

No

What happens if he plans to move to another state?

Then he moves, however, CA will continue to have jurisdiction over the child.

My daughther has a great relationship with me.

She's not your daughter. She's your girlfriend's child.

She likes me a lot (even thou she doesn' know that I am her father). I would say that her relationship is me is better than what she has with her legal father.

On a personal note, you should seriously consider the type of woman you are getting yourself involved with. She's not the most upstanding of individuals...

[Dogmatique]

Uhhh... I vehemently disagree. File a paternity suit.

Really?!

I thought the time limit in CA would apply here...and not just because Mom & Legal Dad are still married.

Help me out, CC

[GV70]

Uhhh... I vehemently disagree. File a paternity suit.

Hmmm
I vehemently disagree with CourtClerk

CALIFORNIA CODES
FAMILY.CODE
SECTION 7645-7649.5
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.

CA would allow a paternity suit to go forward with a 2 1/2 year old child. I've seen it done, even with children older than this

Really??
I'd love to see such cases

What you should do is sue the mother for paternity.however, you do have the right to assert paternity and force the issue that way.

Third parties are not allowed to bring paternity actions when presumed marital father exists
There is two year statute of limitation.

[GV70]

It is a very clear case where the Theory of estoppel and laches may be applied.

The reason she is still with her husband is because I was in another country when the child was born and she did not wanted to take the risk of raising the child alone. I know it is not the right thing to do but she did what she felt right at the moment.While she did tell me that it was my child, I stayed quiet since I was not OK to invite trouble for her!!

My main concern is that he may try to not give up on the child just to make our life hell

It is his right and he may have success.

we are ready to pay back any money that he may have spent on the child, plus the interest......also can he sue his wife for parental fraud???

He can file for Intentional infliction of emotional distress tort claim .
There are four elements there:
1. Defendant acted intentionally or recklessly; and
2. Defendant’s conduct was extreme and outrageous; and
3. Defendant’s act is the cause of the distress; and
4. Plaintiff suffers severe emotional distress as a result of defendant’s conduct.

[SingleDad30]

Hmmm
I vehemently disagree with CourtClerk

CALIFORNIA CODES
FAMILY.CODE
SECTION 7645-7649.5
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.


Really??
I'd love to see such cases




Third parties are not allowed to bring paternity actions when presumed marital father exists
There is two year statute of limitation.

GV70... if I am reading the paragraph correctly... it states that the previously established father (in this case the legal father) can ask for a DNA testing within 2yrs of the child being born if he suspects that he is not the biological father. Clearly he has not done it till date and therefore cannot do it going forward.
Does this mean that even the biological father cannot file for the paternity? What if I was not aware of the fact that the baby was actually mine until recently?

[distressedmom]

Why don't you seek legal counsel. If you filed a paternty suit and asked for a dna test, and was granted the opportunity to take the test, then it might settle a lot of things.

[SingleDad30]

Why don't you seek legal counsel. If you filed a paternty suit and asked for a dna test, and was granted the opportunity to take the test, then it might settle a lot of things.

distressedmom...... I am planning to speak to an attorney and looking for one. In the meanwhile.. just wanted to do some homework in order to have an intelligent discussion with the attorney.

[Dogmatique]

GV70... if I am reading the paragraph correctly... it states that the previously established father (in this case the legal father) can ask for a DNA testing within 2yrs of the child being born if he suspects that he is not the biological father. Clearly he has not done it till date and therefore cannot do it going forward.
Does this mean that even the biological father cannot file for the paternity? What if I was not aware of the fact that the baby was actually mine until recently?

But you were/are aware....

[GV70]

Does this mean that even the biological father cannot file for the paternity? What if I was not aware of the fact that the baby was actually mine until recently?

It depends on the state but California has two year preemptive limitation.
A long and convoluted history lies behind the presumption that a husband is the legal father of the children born to his wife during their marriage, a presumption commonly referred to as the “marital presumption”. California may be unusual among the states in having a “conclusive” marital presumption.

Id. § 7541. If blood tests are performed in accordance
with the chapter concerning blood tests to determine
paternity and the experts conclude that the husband is not
the father, then this section provides that “the question of
paternity of the husband shall be resolved accordingly.”
However, this section restricts motions for blood tests by
time and party. Motions for testing may be made only
within two years of the child’s birth and only by (i) the
husband; (ii) a presumed father (as defined in sections
7611 and 7612), only for purposes of establishing paternity;
(iii) the child’s guardian ad litem; or (iv) the mother,
if the child’s biological father has filed an affidavit
acknowledging paternity.

In California, the conclusive presumption has been grafted onto provisions drawn from the Uniform Parentage Act (UPA).

Dawn D. v. Superior Court, decided by the California Supreme Court involved a triangle.
The challenge was to a statutory provision derived from the UPA, which incorporates a more expansive and less conclusive kind of marital presumption, as well as other grounds for a presumption of paternity. Standing to rebut this presumption is limited to mothers, children, and presumed fathers. The putative biological father in this case did not qualify as a presumed father of any description. The court ruled that biological fathers do not have a constitutionally protected liberty interest in being allowed to form a parental relationship, and hence the restrictions on standing were valid.


California’s semiconclusive, semirebuttable presumption of a husband’s paternity within marriage suggests a position of biological relevance: biology is not the whole story or even the most important part of the story. The guiding philosophy of the state statutory scheme might be described as “biology will control determination of paternal responsibility for a limited period early in a child’s life” ./ Freeman v. Freeman, 53 Cal. Rptr. 2d 439, 446/


A statute of limitations which provides a clean “cut off” for claims of paternity disestablishment has the virtue of certainty, predictability, and simplicity. Putative fathers can be easily informed about their rights to challenge a paternity determination and custodial mothers know when a paternity acknowledgment or order will be permanent.

Why don't you seek legal counsel. If you filed a paternty suit and asked for a dna test, and was granted the opportunity to take the test, then it might settle a lot of things.

Having a lawyer is always a good idea.
Californian law does not give rights a paternity suit to be filed in that case.

.