Who’s Your Baby’s Daddy? Certain Scenarios Can Make That Answer Difficult

There are lots of scenarios regarding child custody, separation and divorce that are difficult or embarrassing to discuss and address. For every one of those scenarios, there seems to be a celebrity we can point to as an example.

Take the issue of determining paternity in a situation where a woman is married to one man, but pregnant with another man’s child. This is the case with “X Factor” judge Simon Cowell and his girlfriend Lauren Silverman, who are expecting a baby. But the catch is this: she is still legally married to another man- real estate tycoon Andrew Silverman.

Andrew Silverman filed for divorce in July, citing adultery as the reason. Cowell is named in the divorce, according to

When this scenario occurs in California, it is important for all parties involved to understand that biology doesn’t always determine paternity. Sitting on your rights can come back to bite you in the end.

There is a presumption under California law that a child born to a married woman residing with her husband at the time of conception is a child of the marriage, says John Griffith, a divorce lawyer in San Diego who represents clients in Oceanside and other nearby communities. The husband is the presumed legal father, whether or not he is the biological father. The out-parent, or boyfriend who fathered the child, has a right to petition the court for a paternity test, but only within two years of the child’s birth or he waives all rights. After two years, the presumption of paternity for the husband sticks, and he is the legal father for life.

“The only exception is that if the husband discovers information subsequent to the child’s birth that he didn’t know about that causes him to believe he may not be the father, the two-year statute to contest paternity starts from the discovery of the new information,” says Griffith, who also represents clients in child custody and spousal support cases.

Let’s say the boyfriend petitions the court for a paternity test and the child is determined to be his. At that point, the biological father has a right to visitation.

“He is also on the hook for child support,” says the divorce attorney.

Some parental rights advocates view California law as being antiquated when it comes to situations such as this. In 1998, the California Supreme Court upheld the notion that marriage prevails over biology in these circumstances.

A man who “fathers a child with a woman married to another man takes the risk that the child will be raised within that marriage and that he will be excluded from participation in the child’s life,” Justice Joyce L. Kennard wrote at the time. Nothing in the Constitution overrules state law favoring the stability of marriages over a biological father’s interests, according to a 1998 Los Angeles Times article on that ruling.

If you are a man who is in a similar situation and worried about your parental rights, or a woman that needs to know what the law says about the fatherhood of your child, contact a family law attorney as soon as possible to determine your rights.