By: Amanda Glowacki
I, like many others, have a guilty habit of looking at the tabloids in line at the supermarket. A couple weeks ago I was browsing some of the celebrity tabloids and came across a headline on Kim Kardashian's pregnancy and new boyfriend Kanye West. Per the headline, Kanye was furious that Kim's divorce to Kris Humphries was still pending and Kanye was willing to do whatever it took to finalize the divorce before Kim delivered. Turns out that Kanye's frustrations are valid as California, like Indiana and many other states, presumes that a married woman's husband is the father of a newly-born child. In Indiana this presumption is codified in IC 31-14-7 which provides in part that:
A man is presumed to be a child's biological father if: (1) the:
(A) man and the child's biological mother are or have been married to each other; and
(B) child is born during the marriage or not later than three hundred (300) days after the marriage is terminated by death, annulment, or dissolution;
For most married couples, this presumption is helpful. It avoids the awkward necessity of having a husband fill out a paternity affidavit or submit to DNA testing when it is clear that he is the father of his wife's child. For Kim and especially Kanye, the presumption is frustrating because a California court will presume that Kris is the father until the child's correct paternity is established. Even Kris should be concerned because the presumption theoretically places an obligation on him for the support of the child.
In reality, this situation occurs more than people realize. Divorce can be a long process, particularly for couples who have a lot of conflict or many assets to divide. In some cases where a couple cannot settle out of court, the road to a contested final hearing can take several months, if not years. It is not uncommon for one of the parties to begin a new relationship in that time, particularly where there are no children and the marriage was short term. Clients give me the stink eye all the time when I have to include in every petition and decree for dissolution whether the wife is pregnant. Unfortunately, it is something that Courts need to know in case a situation like Kim's should ever arise.
Now I am sure that Kim, Kris and Kanye's legal teams are more than capable of rebutting the presumption when/if Kim delivers before a divorce is final, but this situation is a great example of the way the legislature creates laws that do not fit every person's situation. Sometimes we all take for granted that just because a married woman gives birth to a child that she and her husband are the biological parents. There are cases like Kim's or more frequently case of a married gestational surrogate who is carrying another couple's child where the presumption doesn't match reality. In those situations, parties need to have an attorney with the ability to step in and protect the client's interest.
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