Can a woman deny her husband or a stranger paternity test? Can a woman deny her husband or a stranger paternity test? Can a woman deny her husband a paternity test if he thinks she cheated on her? What about a stranger who claims to be the father when the woman is married. The first one should be straightforward, but I am not sure about the second one, because in that situation the man could be a stranger, or even if he's not he could negatively impact the couple. Let's assume that the country is the United States and that the state is California.
Short Answer Can a woman deny her husband or a stranger paternity test? Can a woman deny her husband a paternity test if he thinks she cheated on her? In California, up to the child attaining the age of two, the husband may seek a paternity test and take legal action to disavow paternity of a child of his wife who is not his biological child (although it is not certain of success even if he shows a lack of a biological relationship). But, a &quot;stranger&quot; may generally not compel that a DNA test be done or contest paternity in California, in his own right. Only the mother or her husband may do that in this fact pattern. Long Answer Background: The Technology of Modern DNA Testing In practice, there is almost never any reasonable doubt about a mother's maternity of a child, although this is possible to confirm with DNA tests. DNA tests on well authenticated samples are basically perfectly accurate in determining the paternity of a child (except in the one in a million case of identical twin men who have both had unprotected sex with the mother at the approximate time of conception of a child). The risk of a false positive for a close relative other than an identical twin is almost nil (even, for example, in the case of a &quot;three-quarter sibling&quot; with the identical Y-DNA, which is inherited by boys exclusively from their fathers, mtDNA, which is inherited exclusively from a child's mother, and blood type). A DNA test from a potential father and from the child can be compared to determine with nearly 100% certainty that the child is or is not the biological father of the child. It is not necessary to have DNA samples from both potential fathers to determine if the child is or is not the biological child of one potential father. It is trivial for an adult to obtain their own DNA test at a cost on the order of $100-$200 for a test sufficient for this purpose, and can take two or three weeks to process (it can be done sooner with an expedited processing fee or other kinds of priorities in a lab it only actually takes hours to process). The usual method of DNA collection from both adults and children is to take a swab from the cheek of the subject with a glorified Q-tip and to send it off to a lab, with careful third party participation in the process and labeling of the sample if court authentication is a potential issue. Many other kinds of small tissue samples for a subject, however, such as hair or blood or urine or stool, can be used to obtain a forensic DNA test which is almost equally accurate. Forensic samples, however, are much more expensive to process in a lab and are harder to authenticate as coming from the subject. A &quot;medical grade&quot; DNA test that examines genes where 99.9% +/- of humans are identical (involving the determination of the nature of a vast number of extra genes which are not ancestry informative in most cases, but are useful for identifying novel genetic mutations leading to suspected genetic disorders) are not necessary to determine paternity. Husbands Can Sometimes Disavow Paternity With Genetic Evidence In California, either spouse, may obtain a genetic test to overcome the putatively conclusive presumption until the child reaches the age of two with an affidavit setting forth why this is necessary (i.e. some reason to believe that the child is not the genetic child of the husband of the mother). See C.A. v. C.P., 29 Cal.App.5th 27, 240 Cal. Rptr. 3d 38, 2018 WL 5919106, 2018 Cal.App. LEXIS 1017 (Cal. Ct. App. 2018) (cited in the answer by @kisspuska), and California Family Code §§ 7540, 7541, 7555, 7611 and 7612). To support that affidavit, a husband could obtain and test a DNA sample of the child (as a presumed parent he wouldn't need anyone's consent to do that) and himself, without a court order, although an additional test might be necessary at trial if evidentiary objections were raised about the authenticity of the sample tested. A genetic test is not the end of the story, however, which still has to undergo an analysis balancing the relevant considerations under California Family Code § 7612 in which &quot;the weightier considerations of policy and logic controls.&quot; In practice, this basically means that the court does a best interests of the child analysis that incorporates the damage to the marital relationship that discovery of the mother's affair has caused. For example, if the affair triggered a divorce and the mother's husband had been cited for domestic violence since discovering the affair and testified in court that he would never accept the child as his own, it is likely, in practice, that the father indicated by the genetic test would prevail as a legal parent over the presumption that the husband of the child's mother is the father of the child. In contrast, if the family was intact, the husband of the mother testified that he was willing to raise the child as his own, and the genetic father had a dubious character (e.g. destitute and a criminal record), the court would probably find that the husband of the mother was the legal father notwithstanding the genetic evidence. &quot;Strangers&quot; Almost Never Have Standing To Contest Paternity A stranger would generally not be a presumed parent with standing to seek such a test under California Family Code § 7611, and so would have to rely on the mother or her husband, to raise the issue and bring him in as a potential parent under California Family Code § 7555 (which creates a presumption of paternity if the genetic test shows he is the biological father but doesn't confer standing to challenge the paternity of a husband of the mother if no one else does so). The &quot;stranger&quot; would usually need the cooperation of the mother or the father to obtain a &quot;voluntary&quot; paternity test without a court order to even use it to try to prod either parent to raise the issue of paternity on his behalf, although this would be highly fact specific and one could certainly imagine circumstances in which the &quot;stranger&quot; could obtain a DNA sample from the child without committing a crime. The child through a guardian ad litem, also lacks standing to bring an action seeking to have him declared a parent based upon genetic evidence alone under Section 7541(b)(2). A child's guardian ad litem can only seek to have paternity established in favor of someone with a Section 7611 presumption of paternity (generally speaking, cohabitants of unmarried people and recently former spouses). More specifically, the people with standing to establish paternity under California Family Code § 7611 are: A husband who was married to the mother at the time of the birth or within 300 days before the birth. § 7611(a). A putative husband who would have been a spouse under § 7611(a), who marriage is annulled (e.g. because a marriage license expired or a husband was too closely related to the mother or either spouse is already married). § 7611(b). A putative husband who cohabited with the mother within 300 days before the birth whose attempt to married was too obviously defective to require an annulment (e.g. two fifteen year olds who have a church wedding without a marriage license). § 7611(b). A husband of the mother who marries the mother after the birth and is also named as a father on the birth certificate, in a voluntary written promise, or in a court order. § 7611(c). A putative husband who attempt to marry the mother after the birth and is named as a father on the birth certificate, in a voluntary written promise, or in a court order. § 7611(c). A person &quot;who receives the child into his or her home and openly holds out the child as his or her natural child.&quot; § 7611(d). A parent who dies while the &quot;child is in utero&quot; if this is established in a probate court proceeding. § 7511(e). Generally only the bolded presumption of California Family Code §§ 7611(d) or 7611(e) could ever conceivably apply to a &quot;stranger&quot;, and the dead father under California Family Code § 7611(e) would normally either lose in a § 7612 analysis of competing presumptions or would be named as a &quot;third parent&quot; in what would de facto amount to a memorialization and an adoption, but could be relevant for survivors benefits and inheritance at the death of the biological father. Furthermore, convicted rapists aren't eligible to be found to be legal fathers in California under California Family Code § 7611.5. California's decision to deny the &quot;stranger&quot; standing to establish his paternity is constitutional. The U.S. Supreme Court, in Michael H. v. Gerald D., 491 U.S. 110 (1989), held that a state is not constitutionally required to make such a process available to &quot;the other man&quot;, but some states other than California do anyway. Relevant Statutory Language California Family Code § 7541 which governs contests to the presumption of paternity of a husband of the mother (and certain other cases) provides that: (a) If the court finds that the spouse who is a presumed parent under Section 7540 is not a genetic parent of the child pursuant to Chapter 2 (commencing with Section 7550), the question of parentage shall be resolved in accordance with all other applicable provisions of this division, including, but not limited to, Section 7612. (b) An action to challenge the parentage of the spouse who is a presumed parent under Section 7540 shall be filed and served not later than two years from the child’s date of birth and may only be filed by any of the following: (1) By either spouse. (2) By a person who is a presumed parent under Section 7611 or by the child, through or by the child’s guardian ad litem, to establish the parentage of the person who is a presumed parent under Section 7611. (c) The petition or motion to challenge a presumption under Section 7540 pursuant to this section shall be supported by a declaration under oath submitted by the moving party stating the factual basis for placing the issue of parentage before the court. (d) Genetic testing may not be used to challenge parentage, in either of the following cases: (1) A case that reached final judgment of parentage on or before September 30, 1980. (2) A case challenging the parentage of a spouse who is a parent pursuant to Section 7962 or subdivision (a) of Section 7613, except to resolve a dispute regarding whether the child was conceived through assisted reproduction. California Family Code § 7962 pertains to surrogacy arrangements and § 7613(a) pertains to assisted reproduction. California Family Code § 7612 which sets forth the standard for resolving disputed paternity claims reads as follows: (a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2, a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence. (b) If two or more presumptions arise under Section 7611 that conflict with each other, or if one or more presumptions under Section 7611 conflict with a claim by a person identified as a genetic parent pursuant to Section 7555, the presumption that on the facts is founded on the weightier considerations of policy and logic controls. If one of the presumed parents is also a presumed parent under Section 7540, the presumption arising under Section 7540 may only be rebutted pursuant to Section 7541. (c) In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage. (d) Unless a court orders otherwise after making the determination specified in subdivision (c), a presumption under Section 7611 is rebutted by a judgment establishing parentage of the child by another person. (e) A person’s offer or refusal to sign a voluntary declaration of parentage may be considered as a factor, but shall not be determinative, as to the issue of legal parentage in a proceeding regarding the establishment or termination of parental rights. (f) This section shall become operative on January 1, 2020. Caveats This analysis is specific to California and U.S. law on this topic is not uniform. It is also important to note that the determination made under the California law analysis above is not necessarily binding for all purposes. The applicable law depends upon how the paternity issue presents itself. This may be particular relevant in cases where a child may have an independent interest in asserting that someone is their father that could not have been, or was not asserted, when the child was less than two years old. For example, this analysis isn't necessarily the controlling one for purposes of inheritance rights, for purposes of citizenship, for purposes of membership in an Indian tribe, or for incest determination purposes, under the laws of all potentially applicable jurisdictions.
Hair is not personally property until it is removed from your body, it is just part of your body, just like your nose or your femur. After it is removed from your body, it is the property of the person it used to be attached to, although it is frequently promptly abandoned to a trash bin or the floor of a hair cutter. A married woman in Michigan is not now required to have her husband's permission to cut her hair (unless the husband has been declared her legal guardian for extraordinary cause due to something like dementia by a court with ample due process protections, in theory, anyway). This wasn't true even in 1850 and hasn't been true at any time since then. It may never have been true in Michigan while it was a part of the United States of America, although the state of territorial law under the Northwest Ordinance was not necessarily easy to determine with certainty. Almost certainly, there was never a statute to that effect on the books in Michigan or any preceding U.S. territory. The 1850 Constitution recognized the right of a married woman to have separate property that was not marital property (not unlike the law of community property states and countries at the time and not unlike states like Colorado). The 1855 statute, a 1911 statute not linked above, and the 1981 statute essentially put married women on equal footing with single adult women in terms of property ownership and legal status, with the 1981 statute basically just re-codifying the 1855 and 1911 statutes in more modern language. These legal authorities did so in order to abolish the common law doctrine that upon marriage, a husband and wife become one legal person who acts legally though the husband, called the merger doctrine a.k.a. coverture. Historical background for this wave of statutes can be found here. Justice Kennedy reviewed the history of this law in his 2015 opinion legalizing same sex marriage nationwide in the United States. One U.S. state was outside the common law tradition and a laggard, but it wasn't Michigan: In 1979, Louisiana became the last of the states of the U.S. to have its Head and Master law struck down. An appeal made it to the Supreme Court of the United States in 1980, and in the following year the high court's decision in Kirchberg v. Feenstra effectively declared the practice of male-rule in marriage unconstitutional, generally favoring instead a co-administration model. While these statutes are not directly applicable to the question, they do, more generally, disavow a legal worldview in which one could imagine that a woman would require a man's permission to cut her hair, although this is almost surely just an urban myth. Pre-1850, the government in Michigan, which was basically on the frontier at the time, was just too weak to maintain that kind of control over people.
The short answer is that yes, a couple can marry for the purpose of gaining access to the marital privilege in court actions, even if they are pending when the marriage occurs. There is basically no such thing as a sham marriage in this context. (There may be a handful of outlier cases as is the case in any legal rule, but this is the overwhelmingly uniform rule of law today.) In practice, outside the context of an annulment proceeding in the civil courts where one of the parties to the marriage or fiduciaries such as legal guardians for one of the parties to the marriage seek to have it invalidated, a legally entered into marriage is valid for all purposes without question. Even many marriages that can be annulled for religious purposes are not eligible to be annulled under non-religious civil law. Third-parties generally do not have standing to declare that a marriage be annulled. Usually marriage is conclusively established by the existence of a marriage license and the absence of a death or divorce by either party. Even the existence of a common law marriage, or the existence of some factor that prevents a marriage from being recognized as valid (e.g. one of the parties is already married or is underage) is often fairly easily proved (and is usually completely unrelated to the case in which a martial privilege is to be asserted and undisputed). Immigration law is the only context is which the status of a marriage as a sham is actively policed. Also, keep in mind that the marital privilege for evidentiary purposes is actually two separate privileges. One is the privilege not to testify against a current spouse in a legal proceeding. The other is the privilege not to testify as to confidential communications made to a spouse while the couple was married. Both have exceptions (e.g. for crimes in which one of the spouses is the victim). A confidential communication to a boyfriend/girlfriend prior to marriage is not protected by the confidential communications marital privilege even after the couple married. Only the testimonial privilege would be available with regard to those communications, and the testimonial privilege often has more exceptions than the confidential communications privilege (usually the exceptions are enumerated by statute that varies from state to state). A previous answer related to spousal privilege with quotations from a state statute to provide an example can be found here. In Colorado, which is fairly typical, the confidential communications privilege applies to all crimes (except those which are ongoing or are between the spouses), while the testimonial privilege does not apply to serious felonies.
There are several reasons people wish to get a marriage annulled. I'll try to list them in order of frequency -- though I'm unaware of any statistics that confirm that my ordering is correct. Money. As per Nij's comment, when people are divorced, their property is subdivided 50-50. If one person can get away with an annulment, and keep the property which he earned, then it will be in his interests to do so. Religious reasons. As per SJuan76's comments, several churches, including Catholic, Mormon, and Russian Baptist, do not allow a person to marry if his previous spouse is still alive. An annulment is a way around that. Fraud marriages. This is rare, but under Trump it happens more often then you might think. People (usually women) come to the US illegally, marry someone (generally significantly older), and after the wedding day they are never again seen by their spouse. They use their marriage certificate to ensure permission to stay in the US -- but, they were never interested in marrying that person in the first place. When found, often such people are living with another illegal alien "as a boyfriend", with kids born before the fraud marriage even took place. It is in such cases, that their new spouse often tries to attain an annulment of the marriage -- to make sure that the illegal alien doesn't get rewarded for cheating them. Personal reasons. For some people, having never been married means it's easier to get a spouse who also has never been married -- and being able to check the "Single -- Never married" box on a form is always a plus in such cases. Now, don't ask me why people prefer to marry someone who's never been married, over someone who's been divorced. :) Incest. Under the US law, if you marry someone who's your close relative, then you are guilty of a felony -- even if you didn't know they're your close relative at the time of marriage. However, if you annul the marriage, then you can avoid prosecution.
Short Answer SIMPLIFIED AND UPDATED BASED ON ADDITIONAL INFORMATION IN THE QUESTION: The marriage is valid, but their marriage will not allow the girlfriend to refuse to testify as a witness in the case. She can be compelled to testify against him under oath, but does not have to testify about the confidential communications that they have with each other after they get married (e.g. if he confesses to her while there are having a private conversation after they are married, while he is outside the jail, while he is meeting with his lawyer). All of her recorded statements made at any time, and everything that happens before they are married are available to be used as evidence at trial (assuming no other rule of evidence excludes it). Only confidential statements made between the wife and the criminal defendant while they are married can be excluded based upon their spousal status. END UPDATE Long Answer This question is about the marital privilege, which is created by statute or case law. There are actually two separate marital privileges that are analyzed separately. Also, I'm simplifying this answer to limit it to the "criminal case with a jury trial" situation. The rules are more complicated when it is not a criminal case, and in a bench trial as opposed to a jury trial, all references to the jury would instead be to the judge. But, almost everyone facing murder charges chooses a trial by jury instead of a bench trial, as is their right. The Husband-Wife Confidential Communications Privilege The stronger marital privilege applies to confidential communications made to a defendant's spouse during the marriage, which the defendant can insist not be presented to the jury. It doesn't matter if the spouse is still married to the defendant at the time of trial. The main exception to this privilege is for crimes committed against the spouse who is testifying, or to a crime committed against a child of either spouse. This privilege does not apply to anything that the defendant says to the girlfriend prior to getting married and does not apply to statements made by the defendant to the spouse when other people were present, and is similar to the attorney-client privilege or the parishioner-clergy privilege. In Florida this privilege, created by statute, reads as follows: Florida Evidence Code Section 90.504 Husband-wife privilege.— (1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife. (2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence. (3) There is no privilege under this section: (a) In a proceeding brought by or on behalf of one spouse against the other spouse. (b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either. (c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made. In many states (and in federal court), this Husband-Wife privilege for confidential communications has an exception for cases where the husband and wife jointly carry out a crime or fraud. But, Florida does not have this exception to the Husband-Wife privilege for confidential communications in state court criminal cases. In federal criminal cases, the case law under Federal Rule of Evidence 501 creates a substantially similar privilege for the purposes of this question. Federal Rule of Evidence 501 is as follows: The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. Since this is a criminal case, the last sentence of Federal Rule of Evidence 501 does not apply. There are also not any rules regarding this topic that have actually been prescribed by the U.S. Supreme Court. And, neither the U.S. Constitution nor any federal statute creates a husband-wife or spousal testimonial privilege. So, this issue is governed in federal court by "The common law — as interpreted by United States courts in the light of reason and experience." The relevant common law rules apply nationwide, although different federal court of appeals circuits may apply them slightly differently when the U.S. Supreme Court hasn't supplied a clear rule. The Spousal Testimonial Privilege The weaker marital privilege (sometimes called the spousal testimonial privilege) in many states, which is similar to the 5th Amendment right of a criminal defendant not to testify at trial, is a criminal defendant's right to prevent his current wife (but not a former spouse) from testifying against him at trial on any matter whatsoever, regardless of whether it relates to something that happened during the marriage or not. This marital privilege often has many exceptions for serious crimes and domestic violence in jurisdictions where it applies. In the federal courts, however (pursuant to case law developed under Federal Rule of Evidence 501), this weaker privilege belongs to the spouse called as a witness rather than to the criminal defendant. The spouse of a criminal defendant isn't required to testify against a current spouse in federal criminal prosecutions, but the spouse and not the criminal defendant gets to decide if the spouse will refuse to testify. There may be exceptions to the federal spousal testimonial privilege in cases where one spouse is accuses of a crime against the spouse or a child of one of the spouses, where they are joint participants in a crime, or where the competency of the criminal defendant is at issue (see Wikipedia). The only exceptions which might plausibly apply in a federal criminal trial are if the criminal defendant is the father of your son, or if the criminal defendant and his girlfriend whom he marries were joint participants in the crime, neither of which seems likely to be the case here. In Florida, the weaker marital privilege also known as the spousal testimonial privilege cannot be asserted in state court criminal prosecutions but may be asserted in federal court criminal prosecutions. (See, e.g., here).
Under US law, there is no requirement for a child to have the same last name as the legal father, the biological father, or the mother. Initially the last name is specified on the birth certificate, often taken from the name of the listed father, but that is not required. But the name can be changed at any time, by a custodial parent or guardian while the child is minor, and later by the child directly.
Is it possible for a witness to backtrack and claim that their previous statements were wrong because they misremembered? ... Is the witness now allowed to say something along the lines: &quot;Huh. That's odd. I clearly remember it differently. But it's such a small detail and it was so long ago...&quot;? Yes. Or is it now considered a deliberate lie? A judge's assessment of a witness's credibility and reliability is much more nuanced. See &quot;How is a judge to evaluate a witness's credibility?&quot;
A party to a civil suit in a US court generally has wide latitude on discovery. If it is not completely implausible that one of those text messages might contain something helpful to the other side, then they might well be able to demand and obtain them. This would be true even if Jan has no plans to use any of them. If Jane thinks that there is something in some of those messages which should not be disclosed, she could, normally with the advice of hr lawyer, file a motion to limit discovery in some way. Whether there is good grounds for such a motion will depend on very specific details of the facts, and is beyond the scope of an answer at this forum. It is true that Jane is only required to produce the messages if the judge in the case has in fact ordered this. It would be highly unethical for Jane's lawyer Arnold to lie to here about this. If he did so and got caught, it might cost him his license to practice law, plus additional penalties. If Jane seriously suspects that he is outright lying to her, and colluding with the opposing party, she needs to take steps to confirm or disprove this, or if she can do neither, to obtain a different lawyer.