Child Out of Wedlock - Unwed Fathers Visitation Rights

In M.W. v. R.W.39 Cal. 3d 354 a husband and wife were married for 12 years, during which time the wife had a long-standing affair with the claimant. A child was born nine years into the marriage; the claimant did not claim paternity at the time of her birth and provided no support for her. After the wife separated from the husband, gained custody of the child, and even got a child support order against the husband, the claimant married the wife. They then refused the now former husband visitation, and the claimant instituted a paternity action. Again, this time the claimant's interests were not weighty enough to counter the "social policies upholding the integrity of the family" which underlay application of the conclusive presumption. (Id. at p. 362.) The court noted that the claim was made in the face of the husband's "established and continuing emotional and financial father-daughter relationship." (Ibid.) The claimant's interest, by contrast, was an "abstract" one in establishing paternity. (Ibid.) In the late 1980's, a Court of Appeal opinion, M.G., 213 Cal. App. 3d 1082, was the first state court opinion to confront the case of a married woman's erstwhile paramour actually developing a relationship with a child while her husband was still alive and himself willing to be a father to the child. In Melissa G., the child was born in August, eight days before the husband and wife separated. by December, the claimant and the child's mother were living together, and by the next August they were married. The husband never visited the child, and, just as the child was about to turn four years old, dependency proceedings were initiated after the claimant was arrested, the mother was hospitalized, and the children were found living without adult supervision. (See 213 Cal. App. 3d at p. 1084.) In dependency court proceedings both the claimant and the erstwhile husband sought determinations of paternity; the husband relying on the conclusive presumption while the claimant relied on blood tests.