What is the California Marital Presumption of Parentage?

What is the California family law statute that addresses whether a child born during a marriage is the child of the husband?

In California, the primary statute is Family Code § 7540, establishing the marital presumption of parentage, which presumes a child born to a wife living with her husband is the husband’s child, even if not biologically related, with rebuttable presumptions under Family Code § 7611 detailing when this applies, though a challenge must generally occur within two years of birth.

Key California Family Code Sections regarding parentage when the parties are married:

Family Code § 7540: States that a child born to a wife cohabiting with her husband is presumed to be the child of the marriage.

Family Code § 7611: Lists specific conditions for parentage presumptions, including a child born during or within 300 days after marriage termination, or after an attempted marriage.

How the Presumption Works:

Automatic Legal Parent: When a child is born to a married woman living with her husband, the law automatically recognizes the husband as the legal father, protecting the family unit and placing the marital relationship above mere biological connection initially.

Conclusive Presumption: This presumption becomes conclusive (hard to overturn) after two years from the child’s birth, meaning a third party (like a biological father) or the husband must challenge it within that window.

Challenging the Presumption:

Time Limit: A biological father or the husband must typically file to challenge paternity (often via genetic testing) within the first two years of the child’s life.

Exceptions: The presumption doesn’t apply if the husband was sterile or impotent, or in certain assisted reproduction cases, requiring separate legal steps to establish parentage.

Attorney Galen Gentry has practiced family law for more than 30 years. Based in Woodland Hills, California, he has dedicated his career to protecting families across Los Angeles and surrounding counties.

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