Case Conclusion Date: August 24, 2005
Practice Area: Divorce / Separation
Outcome: Prevailed Against DCSS in Paternity Action
Description: After dismissing, without prejudice, a paternity case against John Doe based on blood test results, the DA pursued another man linked to Mother. Although blood tests confirmed that this man was in fact the biological father, he asserted that the Family Code Section 7540 marital presumption, which states that a child born during marriage is conclusively presumed to be the father of a child, precluded the court from establishing paternity. The court agreed, and the case was dismissed with prejudice against biological father. Thereafter, DCSS re-filed the paternity suit against John Doe asserting Family Code Section 7540. In opposing the paternity action, we argued that although Family Code Section 7540 is a conclusive presumption with only two statutory exceptions that did not apply in our case, as a matter of constitutional due process, the paternity action must be dismissed. Specfically, application of the presumption in this case did not further the underlying public policy of the presumption (i.e., preservation of a family unit); rather, application of the presumption would act as a "financial prophylactic for men who have affairs with married women." The court argeed and dismissed the paternity action with prejudice.