Under California paternity law, a child conceived during the marriage is conclusively presumed to be the child of the married parents. This presumption can be rebutted during the first two years after the birth of the child by evidence of DNA testing. The Court accepts DNA paternity testing as conclusive evidence of paternity. This presumption is the same even though a divorce was pending because they were still married at the time of the child's conception.
Unfortunately, your question mentions that your daughter is now 3 years old. Therefore, you may no longer rebut the presumption.
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I'm very sorry for you and your daughter, and I hope that you are able to find a good family law attorney who can assist you with this matter. She seems quite lucky to have a father who cares so much about her and spends a lot of time with her.
I understand completely why you're confused and uncertain of what to do. This is a very tricky area of law, and one that isn't completely settled yet. I'm going to be honest with you: once your daughter is over the age of two, you're possibly in for an uphill battle if the mother refuses to acknowledge that you're the father. That being said, with as much time as you spend with your daughter and the relationship you have with her, it's certainly a battle worth fighting. I also think that this is something you need to do sooner rather than later.
You will want to open a case under the Uniform Parentage Act, and your case will be classified as a paternity action (where the two of you were never married). You will acknowledge that you are the father of your daughter by opening this case and you can then file a motion requesting formal custody and visitation rights.
Right now, you're in a difficult position, because there is no piece of paper out there definitively stating that you're the father. Therefore, it is very likely in your best interests to establish your parental rights through the legal system as quickly as possible. Good luck!
I agree with Attorney Lowe. There are some very strong facts in your favor. The presumption of paternity may be rebutted if the father was not co-habitating with the mother at the time of conception. There are other factors in your favor as well. Please try and find a family law attorney who is familiar with paternity issues. Your daughter deserves to be with a father who cares as much as you. Good luck.
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