Vincent B. v. Joan R.

Respondents Joan R. and Frank R. were married in May 1961. They remained married, and cohabited as man and wife until separation and divorce in 1974. A boy, respondent Z. R., was born to the marriage on May 11, 1970, and lived with Joan and Frank until the separation. Joan has custody of the child.

In May 1977 appellant Vincent B. filed this action “To Establish Father and Child Relationship and for Visitation.” He alleged that he, not Frank, is Z.’s father, and sought a declaration to that effect, and visitation rights.

Joan and Frank opposed appellant’s action and have maintained throughout these proceedings that Frank is Z.’s father. The trial court granted summary judgment against appellant on the ground, in part, that under Evidence Code section 621, Z. is conclusively presumed to be the child of Frank and Joan. Appellant appeals from the judgment of dismissal.

Evidence Code section 621, subdivision (a), provides: “(a) Except as provided in subdivision (b), 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 conclusive presumption is actually a substantive rule of law based…