Keaton v. Keaton

Opinion

ELKINGTON, J.

Joan Keaton appeals from a judgment declaring that her husband Morgan Keaton “could not be and is not, the father” of a child bom to her on March 20, 1968.

The parties were married March 24, 1967. A stipulation entered into at the trial recited: “They lived together from March 24, 1967, until the date of separation, July 9, 1967. From the period of June 1, 1967, until the period of June 10, approximately, 1967, Mr. Keaton was absent from, the family home on business, continuously. Mr. Keaton, if called to the st&nd, would testify that from the period of June 1, 1967, up to and including today, he has not had marital relations with Mrs. Keaton, or intercourse. And Mrs. Keaton, if called to the stand, would testify that from the period of June 10, 1967, until the time of separation on July 9, 1967, the parties did have intercourse.” Over Joan’s objection the trial court admitted in evidence a laboratory report on a “Paternity Exclusion Test.” This test of the blood of Morgan, Joan, and the child, indicated that Morgan could not be the natural father.

Joan contends that the trial court erred in admitting the blood tests in evidence. She relies on Evidence Code section 621, which states: “Notwithstanding any other provision of law, the issue of a wife cohabiting with her husband, who is not impotent, is conclusively presumed to be legitimate.”

Section 621 codifies a centuries-old principle that the integrity of the

[216]

family, when husband and wife are living together as such, should not be impugned. The husband is deemed responsible for his wife’s child if it is conceived while they are cohabiting; he is the

legal

father and the issue of biological paternity is irrelevant. Moreover, Legislatures and courts have been understandably hesitant in such cases about weighing probabilities of paternity and chose in that manner to resolve doubts in favor of the child’s legitimacy. (See

Kusior

v.

Silver,