Susan H. v. JACK S.

Former section 621 of the Evidence Code provided that “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” absent rebuttal under certain specified circumstances, inapplicable here, within two years of the child’s birth. The sole issue before us is whether the trial court erred in applying this presumption to grant summary judgment in favor of the putative father, who denied paternity, and against the mother after dissolution proceedings with her husband resulted in an order awarding her and her husband joint legal and physical custody of their four-year-old child. We conclude the trial court properly applied the presumption of paternity under the circumstances of this case, and accordingly affirm.

Facts

Susan H. married John A. on May 5, 1985. In September of 1987, Susan H. became pregnant and gave birth on June 23, 1988, to Michael, the minor who is the subject of the present paternity action. Susan H. and John A. lived apart from each other from approximately September 1989 to April 1990. At all other times they resided together during their marriage until September 8, 1991, when…