Alicia R. v. Timothy M

The Court of Appeal in Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, refused to apply the presumption that the child was a child of the marriage. While Alicia was still legally married to another, she entered into a marriage ceremony with Peter. (Id. at p. 1234.) Thereafter, she gave birth to Lindsay in September 1990. Peter was identified as the father on Lindsey's birth certificate, and Lindsay knew Peter as her father. In 1993, a judgment of nullity was filed to the effect that the marriage between Alicia and Peter was void ab initio. The court also found that Peter was not Lindsay's father based on blood tests. (Id. at p. 1235.) Thereafter, in August 1993, Alicia sought to establish that Timothy, with whom she had had an affair, was the biological father of Lindsay and that he should pay child support. The superior court ordered the parties to take DNA tests, which established that Timothy was Lindsay's biological father. (Alicia R., supra, 29 Cal.App.4th at p. 1235.) On appeal, Timothy argued that the superior court erred by ordering blood tests more than two years after Lindsay's birth and by refusing to apply the conclusive presumption that Lindsay was a child of the marriage between Alicia and Peter. (Id. at p. 1236.) The Court of Appeal disagreed. It explained: "Blood tests have established that Timothy is the child's father and that Peter is not. There has been a judgment of nullity of the 'marriage' between Alicia and Peter and a finding by the superior court that there were no children from their union. Alicia no longer resides with Peter and there is no longer a parent/child relationship between Peter and the child. While the state has a legitimate interest in promoting marriage and not impugning a family unit, that interest cannot be served here where there is no marital union or family unit to disrupt. Additionally, the state's interest in ensuring that the child is supported would be furthered by refusing to apply the presumption of Evidence Code former section 621 and requiring Timothy to support the child he fathered. We also agree with the observation of the trial court in Leslie B., that if we were to apply the presumption in this case it would lead 'to an absurd result that defies reason and common sense.' (County of Orange v. Leslie B., 14 Cal. App. 4th at p. 983.) We would be relying 'upon a fiction to establish a legal fact which we know to be untrue, in order to protect policies which in this case do not exist.' (Ibid.)" (Alicia R., supra, 29 Cal.App.4th at pp. 1237-1238.)