Family Law Legal Topics

The Legal Side of the Schwarzenegger Paternity Scandal

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.

7 replies on “The Legal Side of the Schwarzenegger Paternity Scandal”

In addition to the conclusive presumption, according to published reports, the assertion that Governor Schwarzenegger has not supported this child are in error. It appears he has been supporting the child and his mother – bought her a house. If he has no legal obligation to do so, which appears to be the truth, then rather than the scorn which the popular press has been heaping on him they should applaud his responsibility – even at the cost of his marriage, damage to his own family, and public image. Another case of “no good deed going unpunished.”

One logical (if not legal) question is “when did the kid know”? Was his mother paid to keep silent? If so, shouldn’t that fraudulent concealment toll the two-year statute of limitations?

If not, the conclusive presumption law is “an ass,” and should be changed.

The purpose and policy supporting the presumption is that our society values families, and wants children to be supported and cared for. The law is not an “ass” nor should the policy or presumption be abandoned. If we had DNA testing on all children of all married couples in California, or anywhere else in this nation, I would win bets at least 10 to 30% of the time that the tests would demonstrate that a child of a married couple, born during the marriage, was not related to the father. It would probably be a great surprise to husbands. But the ensuing efforts to abandon parental responsibility and rights would be grossly immoral.

The newer studies indicate that during 50% of marriages one or both spouses are unfaithful. That does not mean that the resulting children should be abandoned.

And Robert is right. Arnold is not “a pig” as the media are now howling.

Is there an estoppel assertion that can be made here? If she can show that Big S has been giving her money to live on outside her employment and link that to their illigitimate child, and then show that she relied on his support in raising that child, then I would think she has met the elements of promissory estoppel.

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