Family Law Keyed to Weisberg
Michael H. v. Gerald D
In 1976 Carole D. and Gerald D. were married and established a home in California. In 1978, Carole became involved in an adulterous affair with Michael H. She conceived a child, Victoria, in 1980, with Gerald listed as father on the birth certificate. Gerald has always held the child out to be his daughter, but soon after delivery Carole informed Michael she believed he might be the father. In 1981 Gerald moved to New York and Carole, Michael, and Victoria had blood tests revealing a 98.07% probability that Michael was the father. Carole visited with Michael for several months, were he held Victoria out as his daughter. Carole left Michael and took up residence in California with another man. In the summer of 1982 Carole and Victoria visited Gerald in New York, and the three vacationed in Europe. In the fall she returned to California. In November of 1982 Michael filed a filiation action in California to establish his paternity and right to visitation. In 1983 the co urt appointed an attorney and a guardian ad litem to represent Victoria’s interests. Victoria filed a cross-complaint asserting that if she had more than one psychological or de facto father, she was entitled to maintain her filial relationship, with all of the attendant rights, duties, and obligations, with both. Carole filed for summary judgment while she was again living with Gerald in New York. In August of 1983 she returned to California and again became involved with Michael, instructing her attorneys to remove the summary judgment motion. For the next eight months Michael held Victoria out as his daughter. In April 1984, Carole and Michael signed a stipulation that Michael was Victoria’s father. The next month Carole left Michael, instructing her attorneys to not file the stipulation. Carole reconciled with Gerald and they lived together with two more children being born. In May 1984 Michael and Victoria, through guardian ad litem, sought visitation rights for Michael pendente lite. A court appointed psychologist recommended that Carole retain sole custody, but Michael be allowed continued contact with Victoria pursuant to a restricted visitation schedule. The court concurred. In October of 1984 Gerald moved for summary judgment on the ground that under California law there were no triable issues of fact as to Victoria’s paternity. The law provides that “the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.” The presumption may only be rebutted by blood tests, and a motion for such tests must be made within two years of the birth by the husband, or by the wife if the natural father has filed an affidavit acknowledging paternity. In 1985 the Superior Court granted the motion for summary judgment, finding that Carole and Gerald were cohabiting at the time of conception and birth and that Gerald was neither sterile nor impotent.
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