In Brian C. v. Ginger K. (2000) 77 Cal. App. 4th 1198, 1223 92 Cal. Rptr. 2d 294, Brian and Ginger conceived Kennedy in January of 1995 while Ginger continued to cohabit with her husband, William. In March, Ginger left William and moved into an apartment she rented with Brian. Kennedy was born in October 1995. Brian was present at Kennedy's birth and his name appears as her father on her birth certificate. Ginger and Brian separated in November 1996, but Brian continued to see Kennedy each day and Brian had custody on weekends until May 1997, when Ginger terminated contact between Brian and Kennedy because Ginger and William were reconciling. Brian filed suit and requested genetic testing but no ruling was made on the request. The trial court concluded the marital cohabitation of Ginger and William at the time of Kennedy's conception triggered the conclusive presumption of paternity of section 7540 and granted summary judgment in Ginger's favor. On appeal Brian C. found that, because Brian qualified as a presumptive father, he had standing to attack the conclusive presumption and noted, in a footnote, that, on remand, genetic testing "will certainly constitute clear and convincing evidence rebutting any of the presumptions that might favor either Brian or William." ( Brian C. v. Ginger K., supra, 77 Cal. App. 4th at p. 1222, fn. 20.) In sum, the child was conceived during a time when the wife was having an affair with Brian while continuing to cohabit with her husband, William. During the pregnancy, the wife left her husband and moved in with Brian, who attended the birth, was listed as father on the birth certificate and raised the child as his own. After about a year, the wife and Brian broke up, but he continued his role as father to the child. The wife then reconciled with William and tried to stop Brian from seeing the child. Brian sued to establish paternity and the trial court granted summary judgment in favor of the wife, on the ground that the conclusive presumption of section 7540 made the husband the father. Brian C. determined that William and Brian each had a claim to presumed father status--William on the basis of the section 7540 marital presumption, Brian under section 7611, subdivision (d), by virtue of his actions toward and relationship with the child--and found unconstitutional the trial court's conclusion that section 7540 automatically cut off Brian's rights. In noting that it was not yet called upon to weigh the two presumptions against each other under section 7612, subdivision (b), the Brian C. court stated: "And in all likelihood DNA tests on remand will probably render that problem moot. DNA tests will certainly constitute clear and convincing evidence rebutting any of the presumptions which might favor either Brian or William. (Under subd. (a) of Fam. Code, 7612, a presumption shown by 7611 'may be rebutted . . . only by clear and convincing evidence.') Under section 7551, the court may order blood tests at any time on either its own motion or if suggested by any person involved in the case." (77 Cal. App. 4th at p. 1222 and fn. 20.)