california family-law
Can a woman deny her husband or a stranger paternity test?
<p>Can a woman deny her husband or a stranger paternity test? Can a woman deny her husband a paternity test if he thinks she cheated on her? What about a stranger who claims to be the father when the woman is married. The first one should be straightforward, but I am not sure about the second one, because in that situation the man could be a stranger, or even if he's not he could negatively impact the couple. Let's assume that the country is the United States and that the state is California.</p>

<h2>Short Answer</h2>
<blockquote>
<p>Can a woman deny her husband or a stranger paternity test? Can a woman
deny her husband a paternity test if he thinks she cheated on her?</p>
</blockquote>
<p>In California, up to the child attaining the age of two, the husband may seek a paternity test and take legal action to disavow paternity of a child of his wife who is not his biological child (although it is not certain of success even if he shows a lack of a biological relationship).</p>
<p>But, a &quot;stranger&quot; may generally not compel that a DNA test be done or contest paternity in California, in his own right. Only the mother or her husband may do that in this fact pattern.</p>
<h2>Long Answer</h2>
<h3>Background: The Technology of Modern DNA Testing</h3>
<p>In practice, there is almost never any reasonable doubt about a mother's maternity of a child, although this is possible to confirm with DNA tests.</p>
<p>DNA tests on well authenticated samples are basically perfectly accurate in determining the paternity of a child (except in the one in a million case of identical twin men who have both had unprotected sex with the mother at the approximate time of conception of a child). The risk of a false positive for a close relative other than an identical twin is almost nil (even, for example, in the case of a &quot;three-quarter sibling&quot; with the identical Y-DNA, which is inherited by boys exclusively from their fathers, mtDNA, which is inherited exclusively from a child's mother, and blood type). A DNA test from a potential father and from the child can be compared to determine with nearly 100% certainty that the child is or is not the biological father of the child. It is not necessary to have DNA samples from both potential fathers to determine if the child is or is not the biological child of one potential father.</p>
<p>It is trivial for an adult to obtain their own DNA test at a cost on the order of $100-$200 for a test sufficient for this purpose, and can take two or three weeks to process (it can be done sooner with an expedited processing fee or other kinds of priorities in a lab it only actually takes hours to process). The usual method of DNA collection from both adults and children is to take a swab from the cheek of the subject with a glorified Q-tip and to send it off to a lab, with careful third party participation in the process and labeling of the sample if court authentication is a potential issue. Many other kinds of small tissue samples for a subject, however, such as hair or blood or urine or stool, can be used to obtain a forensic DNA test which is almost equally accurate. Forensic samples, however, are much more expensive to process in a lab and are harder to authenticate as coming from the subject.</p>
<p>A &quot;medical grade&quot; DNA test that examines genes where 99.9% +/- of humans are identical (involving the determination of the nature of a vast number of extra genes which are not ancestry informative in most cases, but are useful for identifying novel genetic mutations leading to suspected genetic disorders) are not necessary to determine paternity.</p>
<h3>Husbands Can Sometimes Disavow Paternity With Genetic Evidence</h3>
<p>In California, either spouse, may obtain a genetic test to overcome the putatively conclusive presumption until the child reaches the age of two with an affidavit setting forth why this is necessary (i.e. some reason to believe that the child is not the genetic child of the husband of the mother). <em>See C.A. v. C.P.</em>, 29 Cal.App.5th 27, 240 Cal. Rptr. 3d 38, 2018 WL 5919106, 2018 Cal.App. LEXIS 1017 (Cal. Ct. App. 2018) (cited in the answer by @kisspuska), and California Family Code §§ 7540, 7541, 7555, 7611 and 7612).</p>
<p>To support that affidavit, a husband could obtain and test a DNA sample of the child (as a presumed parent he wouldn't need anyone's consent to do that) and himself, without a court order, although an additional test might be necessary at trial if evidentiary objections were raised about the authenticity of the sample tested.</p>
<p>A genetic test is not the end of the story, however, which still has to undergo an analysis balancing the relevant considerations <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=7612.&amp;nodeTreePath=14.3.2&amp;lawCode=FAM" rel="nofollow noreferrer">under California Family Code § 7612</a> in which &quot;the weightier considerations of policy and logic controls.&quot;</p>
<p>In practice, this basically means that the court does a best interests of the child analysis that incorporates the damage to the marital relationship that discovery of the mother's affair has caused.</p>
<p>For example, if the affair triggered a divorce and the mother's husband had been cited for domestic violence since discovering the affair and testified in court that he would never accept the child as his own, it is likely, in practice, that the father indicated by the genetic test would prevail as a legal parent over the presumption that the husband of the child's mother is the father of the child.</p>
<p>In contrast, if the family was intact, the husband of the mother testified that he was willing to raise the child as his own, and the genetic father had a dubious character (e.g. destitute and a criminal record), the court would probably find that the husband of the mother was the legal father notwithstanding the genetic evidence.</p>
<h3>&quot;Strangers&quot; Almost Never Have Standing To Contest Paternity</h3>
<p>A stranger would generally not be a presumed parent with standing to seek such a test <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&amp;sectionNum=7611" rel="nofollow noreferrer">under California Family Code § 7611</a>, and so would have to rely on the mother or her husband, to raise the issue and bring him in as a potential parent under California Family Code § 7555 (which creates a presumption of paternity if the genetic test shows he is the biological father but doesn't confer standing to challenge the paternity of a husband of the mother if no one else does so).</p>
<p>The &quot;stranger&quot; would usually need the cooperation of the mother or the father to obtain a &quot;voluntary&quot; paternity test without a court order to even use it to try to prod either parent to raise the issue of paternity on his behalf, although this would be highly fact specific and one could certainly imagine circumstances in which the &quot;stranger&quot; could obtain a DNA sample from the child without committing a crime.</p>
<p>The child through a guardian ad litem, also lacks standing to bring an action seeking to have him declared a parent based upon genetic evidence alone under Section 7541(b)(2). A child's guardian ad litem can only seek to have paternity established in favor of someone with a Section 7611 presumption of paternity (generally speaking, cohabitants of unmarried people and recently former spouses).</p>
<p>More specifically, the people with standing to establish paternity under California Family Code § 7611 are:</p>
<ul>
<li><p>A husband who was married to the mother at the time of the birth or within 300 days before the birth. § 7611(a).</p>
</li>
<li><p>A putative husband who would have been a spouse under § 7611(a), who marriage is annulled (e.g. because a marriage license expired or a husband was too closely related to the mother or either spouse is already married). § 7611(b).</p>
</li>
<li><p>A putative husband who cohabited with the mother within 300 days before the birth whose attempt to married was too obviously defective to require an annulment (e.g. two fifteen year olds who have a church wedding without a marriage license). § 7611(b).</p>
</li>
<li><p>A husband of the mother who marries the mother after the birth and is also named as a father on the birth certificate, in a voluntary written promise, or in a court order. § 7611(c).</p>
</li>
<li><p>A putative husband who attempt to marry the mother after the birth and is named as a father on the birth certificate, in a voluntary written promise, or in a court order. § 7611(c).</p>
</li>
<li><p><strong>A person &quot;who receives the child into his or her home and openly holds out the child as his or her natural child.&quot;</strong> § 7611(d).</p>
</li>
<li><p><strong>A parent who dies while the &quot;child is in utero&quot; if this is established in a probate court proceeding.</strong> § 7511(e).</p>
</li>
</ul>
<p>Generally only the bolded presumption of California Family Code §§ 7611(d) or 7611(e) could ever conceivably apply to a &quot;stranger&quot;, and the dead father under California Family Code § 7611(e) would normally either lose in a § 7612 analysis of competing presumptions or would be named as a &quot;third parent&quot; in what would <em>de facto</em> amount to a memorialization and an adoption, but could be relevant for survivors benefits and inheritance at the death of the biological father.</p>
<p>Furthermore, convicted rapists aren't eligible to be found to be legal fathers in California <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=7611.5.&amp;nodeTreePath=14.3.2&amp;lawCode=FAM" rel="nofollow noreferrer">under California Family Code § 7611.5</a>.</p>
<p>California's decision to deny the &quot;stranger&quot; standing to establish his paternity is constitutional. The U.S. Supreme Court, in <em>Michael H. v. Gerald D.</em>, <a href="https://supreme.justia.com/cases/federal/us/491/110/" rel="nofollow noreferrer">491 U.S. 110</a> (1989), held that a state is not constitutionally required to make such a process available to &quot;the other man&quot;, but some states other than California do anyway.</p>
<h3>Relevant Statutory Language</h3>
<p>California Family Code § 7541 which governs contests to the presumption of paternity of a husband of the mother (and certain other cases) provides that:</p>
<blockquote>
<p>(a) <strong>If the court finds that the spouse who is a presumed parent under
Section 7540 is not a genetic parent of the child pursuant to Chapter
2 (commencing with Section 7550), the question of parentage shall be
resolved in accordance with all other applicable provisions of this
division, including, but not limited to, Section 7612.</strong></p>
<p>(b) An action to challenge the parentage of the spouse who is a
presumed parent under Section 7540 shall be filed and served <strong>not later
than two years from the child’s date of birth</strong> and may only be filed by
any of the following:</p>
<p>(1) <strong>By either spouse.</strong></p>
<p>(2) By a person who is a presumed parent under Section 7611 or by the
child, through or by the child’s guardian ad litem, to establish the
parentage of the person who is a presumed parent under Section 7611.</p>
<p>(c) The petition or motion to challenge a presumption under Section
7540 pursuant to this section shall be supported by a declaration
under oath submitted by the moving party stating the factual basis for
placing the issue of parentage before the court.</p>
<p>(d) Genetic testing may not be used to challenge parentage, in either
of the following cases:</p>
<p>(1) A case that reached final judgment of parentage on or before
September 30, 1980.</p>
<p>(2) A case challenging the parentage of a spouse who is a parent
pursuant to Section 7962 or subdivision (a) of Section 7613, except to
resolve a dispute regarding whether the child was conceived through
assisted reproduction.</p>
</blockquote>
<p>California Family Code § 7962 pertains to surrogacy arrangements and § 7613(a) pertains to assisted reproduction.</p>
<p>California Family Code § 7612 which sets forth the standard for resolving disputed paternity claims reads as follows:</p>
<blockquote>
<p>(a) Except as provided in Chapter 1 (commencing with Section 7540) and
Chapter 3 (commencing with Section 7570) of Part 2, a presumption
under Section 7611 is a rebuttable presumption affecting the burden of
proof and may be rebutted in an appropriate action only by clear and
convincing evidence.</p>
<p>(b) <strong>If two or more presumptions arise under Section 7611 that conflict
with each other, or if one or more presumptions under Section 7611
conflict with a claim by a person identified as a genetic parent
pursuant to Section 7555, the presumption that on the facts is founded
on the weightier considerations of policy and logic controls. If one
of the presumed parents is also a presumed parent under Section 7540,
the presumption arising under Section 7540 may only be rebutted
pursuant to Section 7541.</strong></p>
<p>(c) In an appropriate action, a court may find that more than two
persons with a claim to parentage under this division are parents if
the court finds that recognizing only two parents would be detrimental
to the child. In determining detriment to the child, the court shall
consider all relevant factors, including, but not limited to, the harm
of removing the child from a stable placement with a parent who has
fulfilled the child’s physical needs and the child’s psychological
needs for care and affection, and who has assumed that role for a
substantial period of time. A finding of detriment to the child does
not require a finding of unfitness of any of the parents or persons
with a claim to parentage.</p>
<p>(d) Unless a court orders otherwise after making the determination
specified in subdivision (c), a presumption under Section 7611 is
rebutted by a judgment establishing parentage of the child by another
person.</p>
<p>(e) A person’s offer or refusal to sign a voluntary declaration of
parentage may be considered as a factor, but shall not be
determinative, as to the issue of legal parentage in a proceeding
regarding the establishment or termination of parental rights.</p>
<p>(f) This section shall become operative on January 1, 2020.</p>
</blockquote>
<h3>Caveats</h3>
<p>This analysis is specific to California and U.S. law on this topic is not uniform.</p>
<p>It is also important to note that the determination made under the California law analysis above is not necessarily binding for all purposes. The applicable law depends upon how the paternity issue presents itself.</p>
<p>This may be particular relevant in cases where a child may have an independent interest in asserting that someone is their father that could not have been, or was not asserted, when the child was less than two years old.</p>
<p>For example, this analysis isn't necessarily the controlling one for purposes of inheritance rights, for purposes of citizenship, for purposes of membership in an Indian tribe, or for incest determination purposes, under the laws of all potentially applicable jurisdictions.</p>

<p>In addition to what Dale M outlined generally about Fam. Code §§ 7540 and 7541, there are situations when the “conclusive presumption” can be “rebutted” or challenged, but it is an uphill battle.</p>
<p>One example when this can happen:</p>
<blockquote>
<p>“(1) The presumption continues in California today: “Except as provided in Section 7541, 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.” (Fam. Code, § 7540.) In turn, section 7541 allows blood tests to be used to rebut the presumption, provided the husband or presumed father moves for testing within two years of the child's birth. (§ 7541, subd. (b).)” (<em>C.A. v. C.P.</em>, 29 Cal.App.5th 27, 240 Cal. Rptr. 3d 38, 2018 WL 5919106, 2018 Cal.App. LEXIS 1017 (Cal. Ct. App. 2018)</p>
</blockquote>
<p>However, the view on this “presumption”, as the Supreme Court of California notes, is:</p>
<blockquote>
<p>“Unlike the presumptions enumerated in section 7611, the conclusive marital presumption in section 7540 is not really a presumption at all but is instead a &quot;a rule of substantive law.&quot; (<em>Estate of Cornelious</em> (1984) 35 Cal.3d 461, 464 [ 198 Cal.Rptr. 543, 674 P.2d 245]; <em>Kusior v. Silver</em> (1960) 54 Cal.2d 603, 619 [ 7 Cal.Rptr. 129, 354 P.2d 657].)” (<em>In re Jesusa V</em>, 32 Cal.4th 588, 10 Cal. Rptr. 3d 205, 85 P.3d 2 (Cal. 2004))</p>
</blockquote>
<p>And, therefore, it is an uphill battle.</p>

<h2>Yes</h2>
<p>Paternity tests can only be performed voluntarily or by order of the state. Only the latter have any legal significance.</p>
<p>This applies to both mothers and fathers.</p>
<h2>There is no <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&amp;sectionNum=7540" rel="nofollow noreferrer">point</a> in a husband demanding a paternity test</h2>
<p>Legally, cohabiting spouses are definitively the parents of any child. In general, this cannot be overturned by genetic testing. So even if the husband is not the biological father, they are still the legal parent. The only exception is if the court finds the husband was impotent or sterile and the child was not conceived through assisted reproduction.</p>
<h2>The stranger</h2>
<p>The stranger can petition the court for a paternity test if they want to prove they are the father. Similarly, so can the mother.</p>
<p>Of course, if the person is literally a stranger to the mother the court would deny the petition on the grounds that a person the mother has never met could not be the father of her child.</p>
<p>If granted and the test proves paternity, the child will have three parents - the mother, the husband and the stranger.</p>
