By now we all have heard about the son that former governor Arnold Schwarzenegger fathered with his married household employee. Many pundits are jumping to assumptions that this child is now entitled to live the luxury lifestyle of his father. Others are labeling Schwarzenegger a deadbeat dad, assuming that he should, and did not, provide for his biological son. It turns out that these assumptions may be off the mark. Under California law, Schwarzenegger may not be the child’s legal father, and may have no parental rights or obligations toward him.
California law has a “conclusive” presumption of paternity for children born to a married woman. Four elements must all exist at the time of a child’s birth to trigger application of this presumption (Fam C §7540):
- The mother is in a valid marriage;
- The mother is living with her husband;
- Her husband is not sterile; and
- Her husband is not impotent.
If all of these elements are in place when the child is born, the child is presumed to be that of the mother’s husband. Any rebuttal of the presumption through a motion for blood tests must be made within two years of the child’s birth. Fam C §7541.
It appears that the mother of Schwarzenegger’s now 13-year-old son was married and living with her husband when the child was born, and no paternity action was filed within two years of the child’s birth. Assuming the rest of the elements are in place, the child is of the marriage and thus her husband’s legal child under California law.
As explained by attorney Andree Taylor of Taylor Solano & Associates in an article on Online PR Media, this means that Schwarzenegger has no parental rights or obligations to this child. As Taylor puts it
Schwarzenegger’s announcement does not serve any legal purpose, but may have served a moral one. Schwarzenegger could have kept this a secret and no one would have known the difference. In California, it happens all the time.
For a comprehensive look at parentage issues, go to Practice Under the California Family Code: Dissolution, Legal Separation, Nullity, chap 8A. Also check out California Child and Spousal Support: Establishing, Modifying and Enforcing, chap 1, and California Domestic Partnerships, chap 14.
© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.