Paternity: What Happens When There Is More Than One Father?

By Richard A. Marcus, Esq.


The Anna Nicole Smith Tragedy has brought with it a very interesting question regarding Family Law. What are the Courts to do when more than one person claims to be a child’s biological father? In California, it works like this. Not surprisingly, there is a presumption that subject to expert conclusions based on blood tests showing otherwise, the child of a wife cohabiting at time of conception with her husband, who is not impotent or sterile, is "conclusively" presumed to be a child of the marriage. This “conclusive presumption” may however be challenged by requesting a blood test within two years of the child's birth.

If a blood test is needed, a court order will be required. And, only certain people have the right to ask for a blood test, like the husband, child, mother and a "presumed father. If a blood test is to be used to overcome the presumption of the husband, it must be ordered by the court and performed by court-appointed experts. Even with these stringent rules, the Court’s have the ability to apply what is called a “constitutional override” so that justice is done on a case by case basis. Thus, a father that does not timely move for a blood test, still may have the opportunity to over come the presumption.

So what happens if the mother is unmarried? In that situation, the natural father can execute a voluntary declaration of paternity. Before 1997, this form would give rise to a conclusive presumption of paternity that has the same effect as that of a married husband, which could be overcome only by blood or genetic tests ordered by the Court. After 1996, such a declaration establishes paternity and has the same force and effect as a judgment for paternity issued by a court.

And, what happens if the person signing the voluntary declaration really isn’t the father? The court can set aside the declaration based upon genetic tests, which usually must be brought within two years of the child's birth. Interestingly enough, there is no mandatory right to set aside the declaration. Even if genetic tests negate biological paternity of the man who signed the declaration, the court has discretion to deny the set-aside based on the child's best interests. Things get messier as time goes by and a person holds himself to be the child’s biological father.