Mindy W. v. Super. Ct. CA4/2

DISCUSSION

Petitioner seeks to vacate the order for genetic testing and to stay a subsequent

evidentiary hearing on the issues of child custody and visitation, contending that the trial

court erred in ordering genetic testing in that absence of a finding that real party is a

presumed father. We agree.

Family Code2 section 7540 states: “Except as provided in Section 7541, the child

of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively

presumed to be a child of the marriage.”

All further statutory references shall be to the Family Code, unless otherwise stated.

3 Section 7541 reads in part: “(a) Notwithstanding Section 7540, if the court finds

that the conclusions of all the experts, as disclosed by the evidence based on blood tests

performed pursuant to Chapter 2 (commencing with Section 7550), are that the husband

is not the father of the child, the question of paternity of the husband shall be resolved

accordingly.

“(b) The notice of motion for blood tests under this section may be filed not later

than two years from the child’s date of birth by the husband, or for the purposes of

establishing paternity by the presumed father…