Ferguson v. Ferguson

California Court of Appeal Dec 15, 1981 No. Civ. 61207Published

Before: Stephens

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Holding. The court held that Evidence Code section 621, which creates a conclusive presumption of paternity for a child born to a wife cohabiting with her husband, precludes a child from seeking blood tests to establish paternity against a third party. The court further held that the statute limits the right to request such tests exclusively to the husband.

Issues

Whether a child is entitled to obtain and introduce HLA blood test results to establish paternity against a third party when the mother was cohabiting with her husband at the time of conception.
Whether the 1980 amendment to Evidence Code section 621 permits a child to challenge the conclusive presumption of the husband's paternity.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The issue to be determined is whether Derek was entitled to obtain an HLA test of Thomas and to produce the result in evidence if it established paternity.”

“As noted, section 621 permits only the husband to make the motion for blood tests.”

Opinion

STEPHENS, Acting P. J.

This is an appeal from a summary judgment for defendant in a paternity action; the action was filed June 20, 1979, and judgment entered August 5, 1980. Derek is the minor who seeks to establish Thomas as his natural father. Derek’s mother is Shirley, and at the time of Derek’s conception and birth she was lawful

[746]

ly married to Robert

and cohabiting with him. The issue to be determined is whether Derek was entitled to obtain an HLA test of Thomas and to produce the result in evidence if it established paternity. The trial court had denied without prejudice motions to obtain such evidence, concluding that the presumption of Robert’s paternity made such evidence immaterial.

We affirm the judgment. As we have noted, judgment in this case was rendered August 5, 1980. The applicable law as of that date was contained in Evidence Code section 621, which read: “Notwithstanding any other provision of law, 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.”

This legislative declaration is really not a presumption but a rule of substantive law.

(Jackson

Jackson

(1967) 67 Cal.2d 245, 247 [60 Cal.Rptr. 649, 430 P.2d 289].)

Except where the conclusive rule is applicable, scientifically reliable blood tests are admissible when used to

exclude

paternity.

(Dodd

Henkel

(1978) 84 Cal.App.3d 604, 608 [148 Cal.Rptr. 780].)

Derek argues that the 1980 amendment, effective September 30, 1980, is applicable in his case. That amendment changed Evidence Code section 621 so that it read as follows:

Ferguson v. Ferguson

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