[bonez2799]

I have been married to my wife for 8 years. We went through a divorce but it was never finalized with her signature 5 years ago and we attempted to reconcile ever since. Almost 3 years ago, my daughter was born to us and I have raised her as my own, loved her more than life itself since my wife was pregnant. A few weeks ago, without my knowledge, my wife took my toothbrush and found out that I am NOT he biological father. She then told the biological father about it and secretly took my daughter to meet him a few days ago. I just found all of this out.

Now, the biological father wants to be in her life, which I have no problem with. But I wondered if anybody knew what my rights were in this situation? She may just go finalize the divorce... does that complicate matters? My name is on her birth certificate and I THINK I signed a Declaration of Parental Rights but don't remember for sure. How can I be involved in the legal process of him coming into her life? What are MY rights? What are HIS?

My wife is being very difficult about my role in this whole process, taking action without me knowing and allowing the biological father to take action without me knowing too. I just want to know how I can involve myself in this process and if I will have any rights to custody if in fact we do finish the divorce. Also, I was curious as to what kind of control or influence I have in this situation.

[cdad]

Fisrt off since your still maried you're the presumed father. Where is this happening at? It varies by state as to if it can be challenged or not. You also have the right to custody at this time and should apply for it in the courts.

[ScottGem]

First any question on law needs to include your general locale as laws vary by area. This is especially true in this instance. In most areas when a child is born to a legally married couple the father is the presumed legal father. Where the laws vary is in how that presumption can be challenged. In some areas there is small window of time when that can happen.

My suggestion is to consult an attorney who can tell you what the law is in your area.

[bonez2799]

Southern California, San Bernardino county to be more specific.

Just today I applied for custody of both children, both to get a new custody arrangement for my son and add my daughter to it.

One hiccup I've discovered is that since both the biological and I were informed only recently, it seems he can contest the whole thing and it appears he will. Not sure what that means yet but it looks like my position is solid. To be continued.

{Comments merged-<>}

[GV70]

In California, there is a statute of limitations of two years from the child's birth or from a declaration of paternity to contest or establish paternity. This includes paternity of children in cases where a man married to the child's mother wants to contest paternity.

[GV70]

FAMILY.CODE
SECTION 7645-7649.5



7645. For purposes of this article, the following definitions shall
Apply:
(a) "Child" means the child of a previously established father, as
Determined by the superior court in a judgment that is the subject
Of a motion brought pursuant to this article, or as a matter of law.
(b) "Judgment" means a judgment, order, or decree entered in a
Court of this state that establishes paternity, including a
Determination of paternity made pursuant to a petition filed under
Section 300, 601, or 602 of the Welfare and Institutions Code, or a
Voluntary declaration of paternity. For purposes of this article,
"judgment" does not include a judgment in any action for marital
Dissolution, legal separation, or nullity.
(c) "Previously established father" means a person identified as
The father of a child in a judgment that is the subject of a motion
Brought pursuant to this article.
(d) "Previously established mother" means a person identified as
The mother of a child in a judgment that is the subject of a motion
Brought pursuant to this article.



7646. (a) Notwithstanding any other provision of law, a judgment
Establishing paternity may be set aside or vacated upon a motion by
The previously established mother of a child, the previously
Established father of a child, the child, or the legal representative
Of any of these persons if genetic testing indicates that the
Previously established father of a child is not the biological father
Of the child. The motion shall be brought within one of the
Following time periods:
(1) Within a two-year period commencing with the date on which the
Previously established father knew or should have known of a
Judgment that established him as the father of the child or
Commencing with the date the previously established father knew or
Should have known of the existence of an action to adjudicate the
Issue of paternity, whichever is first, except as provided in
Paragraph (2) or (3) of this subdivision.
(2) Within a two-year period commencing with the date of the child'
S birth if paternity was established by a voluntary declaration of
Paternity. Nothing in this paragraph shall bar any rights under
Subdivision (c) of Section 7575.
(3) In the case of any previously established father who is the
Legal father as a result of a default judgment as of the effective
Date of this section, within a two-year period from January 1, 2005,
To December 31, 2006, inclusive.
(b) Subdivision (a) does not apply if the child is presumed to be
A child of a marriage pursuant to Section 7540.
(c) Reconsideration of a motion brought under paragraph (3) of
Subdivision (a) may be requested and granted if the following
Requirements are met:
(1) The motion was filed with the court between September 24,
2006, and December 31, 2006, inclusive.
(2) The motion was denied solely on the basis that it was
Untimely.
(3) The request for reconsideration of the motion is filed on or
Before December 31, 2009.


7647. (a) A court may grant a motion to set aside or vacate a
Judgment establishing paternity only if all of the following
Conditions are met:
(1) The motion is filed in a court of proper venue.
(2) The motion contains, at a minimum, all of the following
Information, if known:
(A) The legal name, age, county of residence, and residence
Address of the child.
(B) The names, mailing addresses, and counties of residence, or,
If deceased, the date and place of death, of the following persons:
(I) The previously established father and the previously
Established mother, and the biological mother and father of the
Child.
(ii) The guardian of the child, if any.
(iii) Any person who has physical custody of the child.
(iv) The guardian ad litem of the child, if any, as appointed
Pursuant to Section 7647.5.
(C) A declaration that the person filing the motion believes that
The previously established father is not the biological father of the
Child, the specific reasons for this belief, and a declaration that
The person desires that the motion be granted. The moving party is
Not required to present evidence of a paternity test indicating that
The previously established father is not the biological father of the
Child in order to bring this motion pursuant to Section 7646.
(D) A declaration that the marital presumption set forth in
Section 7540 does not apply.
(3) The court finds that the conclusions of the expert, as
Described in Section 7552, and as supported by the evidence, are that
The previously established father is not the biological father of
The child.
(b) The motion shall include a proof of service upon the following
Persons, excluding the person bringing the motion:
(1) The previously established mother.
(2) The previously established father.
(3) The local child support agency, if services are being provided
To the child pursuant to Title IV-D or IV-E of the Social Security
Act (42 U.S.C. Sec. 651 et seq. and 42 U.S.C. Sec. 670 et seq.).
(4) The child's guardian ad litem, if any.

[ScottGem]

If you were legally married to the mother when the child was born, then YOU are the legal father and share joint legal custody. So there is no need to file for custody unless you are filing for primary physical custody.

It would appear, based on the law as GV posted it, that the bio father has lost the opportunity to challenge your legal paternity.