If a woman who is married has a child, what rights does the biological father have?

Full Question:

If a married woman gives birth to a child, but her husband is not the biological father, what are the rights of the biological father? What are the rights of the husband? Does the biological father have any visitation rights if he does not acknowledge paternity?
03/24/2009   |   Category: Paternity   |   State: California   |   #15745


A man is presumed to be the father if he has been married to the mother for a certain time before the child is born. That presumption may be rebutted by clear and convincing standards of evidence, such as a DNA test. A man not a presumed father may bring an action for the purpose of declaring that he is the natural father of a child having a presumed father. If a biological father is determined to be a man not married to the mother, that man may be ordered to have visitation rights, as well as other obligations.

Once paternity has been established, a father has the right to seek custody of or visitation with his child. Even after paternity has been adjudicated or registered, as long as there is no court order on custody, many states presume that the mother has custody of the child. A custody agreement between the parents or a court order can clarify custody and visitation issues. Unmarried parents without custody are entitled to the same visitation rights as divorced parents, absent extraordinary factors such as abuse or domestic violence. Adoption by the husband might be possible with the biological father's consent.

The following is a CA statute:


(a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2 or in Section 20102, 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.

(b) If two or more presumptions arise under Section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.

(c) The presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man.

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