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Family Expert
Family Expert, Lawyer
Category: Family Law
Satisfied Customers: 1291
Experience:  25 Years
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I have 2 children, 4-8, their mother and I were never ...

Customer Question

I have 2 children, 4-8, their mother and I were never married but we had an affair. I know the kids are mine since her former husband is sterile. She told me they were mine, but her husbands name is XXXXX XXXXX birthcertificate. I have never met them. You see, she is a famous actress and I'm an Electrician. We live about 450 miles apart. My kids are in a bad enviroment where there's drug use and other undesirable activities going on! I love my Kids! I want my rights as their farther and would seek full custody... What to do?
Submitted: 8 years ago.
Category: Family Law
Expert:  Family Expert replied 8 years ago.

Look here for an overview and a place to get the forms you need.

http://www.uslegalforms.com/paternity/california-paternity-forms.htm

Under the common law, there was a presumption that a child born to a marriage was a child of the husband. This presumption could only be overcome by a showing of sterility, impotency, or that the husband had no access to his wife at the time of conception.

In recent years, many states have adopted more relaxed rules, permitting the presumption to be rebutted under other circumstances. 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.

The "conclusive presumption," found in (California Code] section 7540, states: "Except as provided in Section 7541 [providing for the use of blood tests], the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." Under section 7541, requests for blood tests to rebut the conclusive presumption of paternity must be made within two years of the child's birth and can only be made by the husband, the child, the mother or a "presumed father" as defined in sections 7611 and 7612.

Read full Califronia court decision here:

http://www.courtinfo.ca.gov/opinions/archive/B146673.DOC

All the best,

Customer: replied 8 years ago.
I do not accept answer! It says nothing about DNA testing that would confirm me as the biological father!
Expert:  Family Expert replied 8 years ago.
DNA testing, if you could get it done, you children and their mother would of course give you the answer about whether you are father or not. I am simply telling you that California law is not going to allow you to be recognized as the father, and I explained why above.

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