Can you Rebut the Absolute Presumption?
The California Family Code states that the legislature has an interest in establishing paternity for all children and establishing paternity is a step towards a child support award, which, in turn, provides children with equal rights and access to benefits, including, but not limited to, social security, health insurance, survivors' benefits, military benefits, and inheritance rights. Knowledge of family medical history is often necessary for correct medical diagnosis and treatment. Additionally, knowing one's father is important to a child's development.
It is possible to rebut the general presumption set forth in FC 7540, above. If the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly. Generally, the Request for blood tests under this section may be filed not later than two years from the child's date of birth.
The factors that guide courts on issues of custody and support in marriage cases are the same in parentage cases. What is written about custody and support elsewhere on this site applies here too. The Uniform Parentage Act applies to children is also used to establish rights for intended parents that use a surrogate. FC 7606 provides: 7606. As used in this part, the following definitions shall apply: (a) 'Assisted reproduction' means conception by any means other than sexual intercourse. (b) 'Assisted reproduction agreement' means a written contract that includes a person who intends to be the legal parent of a child or children born through assisted reproduction and that defines the terms of the relationship between the parties to the contract.'
The single most common application of the Uniform Parentage Act is the establishing of a parental relationship for support purposes. A parent who wishes to receive welfare typically assigns her right to support to the County, and in turn the Department of Child Support Services pursues the parent for reimbursement purposes. It follows that the court must adjudge the parentage issue at least prior or consecutively to the support order.
As far as custody rights go, FC 7604 states that a court may order pendente lite relief consisting of a custody or visitation order pursuant to Part 2 (commencing with Section 3020) of Division 8, if the court finds both of the following: (a) Based on the tests authorized by FC 7541, a parent and child relationship exists pursuant to FC 7540. (b) The custody or visitation order would be in the best interest of the child. Essentially the factors that the court will weigh are the same as in dissolution or other family cases, but the court must find that the new candidate for custody is in fact the father of the child. FC 7611 lists several presumptions when a man is presumed to be the natural father of a child: when a child is born during a marriage, the parents have attempted to marry, when the father is named on the birth certificate with his consent, and when a father receives a child into his home and openly holds out the child as his natural child. While FC 7611 refers to a 'man,' the section applies to the female gender, too. Hence a child may have two mothers. In Elisa B vs. the Superior Court of Eldorado County the court stated, 'Though most of the decisional law has focused on the definition of the presumed father, the legal principles concerning the presumed father apply equally to a woman seeking presumed mother status.' Effectively the courts can hold either of two people who agree to adopt or artificially inseminate or procreate by other means responsible for support while that parent may seek custodial rights or visitation.