Steven W. v. Matthew S.

The case before us presents a unique and difficult question. Two men assert a parental interest in a child, and while both have a basis for their claim, the law allows for only one legal father. Matthew S. contends that the trial court erred in refusing to apply former Evidence Code section 621, subdivision (a) , conclusively presuming him to be the father of the minor child, Michael. He also alleges that the trial court’s decision was premature and that the best interests of the child should be explored. We conclude that Evidence Code section 621 did not apply and that the issue of paternity was properly decided before considering custody and visitation.

I. Factual Background

Matthew and Julie were married in 1982. They had one child in 1983 whose parentage is not at issue. In 1986, Julie moved out of the apartment they shared and moved in with respondent Steven W. with whom she was romantically involved. Julie told Steven that she was divorcing Matthew. Divorce papers were prepared and Julie and Steven made plans to marry.

Steven was unaware that Julie never filed for divorce and that she maintained a sexual relationship with Matthew. Matthew was seemingly unaware…