IN RE: the MARRIAGE OF REBECCA and David R.

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Court of Appeal, Fourth District, Division 2, California.

IN RE: the MARRIAGE OF REBECCA and David R. REBECCA R., Respondent, v. DAVID R., Appellant.

No. E013860.

Decided: April 21, 1997

John L. Dodd, Tustin, for Appellant. Rebecca R., in pro. per., and J. David Mazurek for Respondent.

OPINION

In this dissolution proceeding, the trial court ordered the husband, David R., to pay child support for two minor children.   However, during the proceedings, Rebecca R. informed her husband that he was not the biological father of the children.   David then sought to avoid paying continuing child support on grounds that he was not the biological father of the children.

Rebecca now argues that the children are David's children because Family Code section 7540 establishes a conclusive presumption that the child of a wife cohabiting with her husband, who is not impotent or sterile, is a child of the marriage.1  However, in the recent cases of Comino v. Kelley (1994) 25 Cal.App.4th 678, 30 Cal.Rptr.2d 728, and County of Orange v. Leslie B. (1993) 14 Cal.App.4th 976, 17 Cal.Rptr.2d 797, our colleagues in Division Three held that the presumption of section 7540 should not be applied when application does not further the policies underlying the presumption.

Similarly, in In re Marriage of Freeman (1996) 45 Cal.App.4th 1437, 53 Cal.Rptr.2d 439, our colleagues in Division One held that “during the very early years of a child's life, the support obligation is based solely on actual or presumed biological paternity.   Thereafter, notwithstanding evidence of biological paternity, a husband's obligation to support a child may be found in the nature and extent of the husband's social relationship with the child.”   (Id., at pp. 1440-1441, 53 Cal.Rptr.2d 439.)

While we agree with our colleagues that the presumption of section 7540 should not be applied when application does not further the policies underlying the presumption, we find in this case that a court which orders blood testing on its own motion under section 7551 must determine paternity on the basis of the blood tests, not the social relationships involved.

We therefore publish the opinion to emphasize to the trial courts that they should not routinely order blood tests in such cases but instead must exercise their discretion when acting under section 7551.   This result follows from the statutory scheme which clearly states that, when such blood tests are ordered, the trial court must follow their results. (§§ 7554, 7541, subd. (a).)

Accordingly, we hold that the presumption of section 7540 does not govern when the results of blood tests ordered by the trial court under section 7551 establish that the husband is not the biological father.   In such a situation, sections 7541, subdivision (a) and 7554 require that the question of paternity be resolved in accordance with the blood test results.

Specifically, section 7541, subdivision (a), provides that the presumption of section 7540 is overridden when blood tests performed pursuant to the Uniform Act on Blood Tests to Determine Paternity (§ 7550 et seq.) establish that the husband is not the father of the child.   However, section 7541, subdivision (b), requires the husband, as a presumed father (§ 7611), to file a motion for blood tests within two years of the child's birth.   Here, a motion was not filed within two years because the husband, David, was not aware of his wife's deception until the dissolution proceedings.

The trial court disregarded sections 7541 and 7554 and relied on the presumption of section 7540.   It therefore ordered David to pay continuing child support for the two children born during his marriage to Rebecca.   David appeals.

We specifically hold that (1) the two-year limitation on filing motions for blood tests in section 7541 is not applicable to blood tests ordered by the court pursuant to section 7551;  and (2) section 7554 required the trial court to find, on the basis of the blood test results, that David is not the father of the two minor children.   The trial court therefore erred ordering David to pay continuing child support.

FACTS

David and Rebecca were married in 1975 and cohabited until July 1992.   Two children were born during the marriage.   They are Ryan, born August 4, 1984, and Charlotte, born June 5, 1988.   Each of their birth certificates states that David is the father of the child.

Rebecca testified that the biological father was Lee O.2  She claimed that both conceptions were pursuant to an agreement or understanding between her, her husband, and Mr. O.

David denied any such agreement or understanding and denied having any knowledge of the affair between Rebecca and Mr. O. until Rebecca told him, on March 1, 1993, that Mr. O. was the biological father of the children.3  At that time the children were ages 9 and 4.

Mr. O. testified that he had never talked to David about impregnating Rebecca.   He did discuss it with Rebecca and just believed that he was doing the couple a favor by impregnating her.   He believed he was the biological father of both children.   Although he was not asked about his relationship with the children, there is no evidence that he has acted as a father at any time since their birth, or that he has any desire to do so.

After a dissolution petition was filed in 1992, the paternity issue arose during mediation proceedings.   The court, Judge J. McIntyre, ordered blood testing, as recommended by the family mediator.   The tests confirmed that David is not the biological father of the children.   The accuracy of this determination is not questioned by either party.

The case was then referred to Judge Van Frank for trial.   David testified that, since he had believed the children were his own, he had treated them as his natural children since their birth.   He believed that he had a good relationship with the children and they looked upon him as their father.   He had visited the children a number of times after the parties separated.   He testified that he would like to have “an ongoing honest relationship” with the children, and that he still loved and cared for them.   At the time of the hearing, in June, 1993, David was current on child support payments.

In July 1993, Judge Van Frank issued his tentative opinion.   He disbelieved Rebecca's testimony that David had agreed to have Rebecca impregnated by Mr. O.   He also noted that the blood tests established that David was not the biological father.   Nevertheless, he stated:  “The question now quite simply is, may respondent be relieved of parental responsibilities and obligations.   The court is not persuaded that respondent comes within any exception to E.C. Section 621.   Likewise, no existing case law carries any exception to the 621 presumptions such as ‘Due Process' or ‘Equal Protection’.  (Witkin, Calif. Evid., 3rd Edition, Vol. I, Section 278-283, pp. 238-246.)   Therefore, respondent is the father of both Ryan and Charlotte.”   Subsequently, the tentative decision was ordered to be the statement of decision.   An amended final judgment was eventually filed and David was ordered to pay child support for the two minor children.

THE PRESUMPTIONS OF SECTIONS 7540 AND 7541

Section 3900 states the general duty of the father and mother of a minor child to support the child.  (See also § 4053.)   Since the duty does not depend upon the parties being married, legitimate and illegitimate children are treated alike. (§ 7602;  White v. Marciano (1987) 190 Cal.App.3d 1026, 1031, 235 Cal.Rptr. 779.)   Here, David, the husband of the children's mother, and the presumed father of the children, seeks to avoid support obligations by asserting that he is not the biological father of the children.   In support of his assertion, he relies on the unchallenged biological evidence provided by the blood tests.   In effect, he argues that the blood test results rebut the presumption of paternity in sections 7540 and 7611, as provided in sections 7541, subdivision (a), and 7612.

Rebecca argues that we should disregard the biological evidence and require her former husband to pay child support because the children were born during the marriage.   She thus relies on the presumption of section 7540.

1. Section 7540.

Section 7540 provides:  “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.”  (Emphasis added.)

“ ‘The principle established by [former Evidence Code] section 621 [now section 7540] is of great antiquity, having been a maxim of the Roman law, which was copied by the common law․’  [Citation.]  [¶]  The conclusive presumption of legitimacy of [former Evidence Code] section 621, subdivision (a) is, of course, a rule of substantive law.  [Citation.]   It codifies the principle that when husband and wife are living together as such, the integrity of the family 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.’  [Citation.]   The rule promotes important social policies;  preservation of the integrity of the family, protection of the welfare of children by avoiding the stigma of illegitimacy and keeping them off welfare rolls, and insurance of the stability of titles and inheritance․  [¶]  The conclusive presumption of [former] Evidence Code section 621, subdivision (a) has consistently been upheld against constitutional attack despite the scientific advances that have increased the reliability of blood tests.”  (Estate of Cornelious (1984) 35 Cal.3d 461, 464-465, 198 Cal.Rptr. 543, 674 P.2d 245.)

As noted above, the trial court applied this presumption and found that David is liable for continuing child support because the two children are conclusively presumed to be the children of his marriage to Rebecca.   The trial court thus found that, regardless of biological parenthood, David is the legal father of the children, and that he is liable for continuing child support.

2. Section 7541, subdivision (a).

In 1980 and 1981, the Legislature amended former Evidence Code section 621 by adding subdivisions (b) through (h).  (Stats.1980, ch. 1310, § 1;  Stats.1981, ch. 1180, § 1.)   The current version of subdivision (b) of those amendments, section 7541, subdivision (a), states:  “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.”  (Emphasis added.)

“The presumption of legitimacy has also been the subject of much commentary and criticism.  [Citations.]   In apparent response to such commentary, the Legislature recently adopted limited exceptions which essentially take the form of a statute of limitations.   In 1980 and 1981, it added subdivisions (b) through (g) to [former Evidence Code] section 621, which allow the mother or the presumed father within two years of the child's birth to present blood test evidence disputing the presumed paternity.”  (Estate of Cornelious, supra, 35 Cal.3d 461, 465, 198 Cal.Rptr. 543, 674 P.2d 245;  see also Keaton v. Keaton (1970) 7 Cal.App.3d 214, 216, 86 Cal.Rptr. 562.)   The Cornelious opinion goes on to discuss a Stanford Law Review article that apparently influenced the Legislature to adopt the rule that certain blood test evidence prevails over the formerly conclusive presumption.  (Cornelious, supra, at pp. 465-466, 198 Cal.Rptr. 543, 674 P.2d 245, quoting Hoffman, Recent Developments, California 's Tangled Web:  Blood Tests and the Conclusive Presumption of Legitimacy (1968) 20 Stan.L.Rev. 754;  see also In re Marriage of B. (1981) 124 Cal.App.3d 524, 530-531, 177 Cal.Rptr. 429.)

In 1953, the Legislature adopted the Uniform Act on Blood Tests to Determine Paternity.4  However, it did not adopt section 5 of the Uniform Act, which allows the use of blood tests to overcome the presumption of paternity, until 1980.  (Stats.1980, ch. 1310, § 1;  People v. Thompson (1979) 89 Cal.App.3d 193, 201-202, 152 Cal.Rptr. 478.)   In adopting the substance of section 5 in 1980, the Legislature may have concluded that scientific advancements in test reliability justified adoption of the amendment.  (12 Pacific L.J., Selected 1980 Legislation, pp. 369-370, citing Cramer v. Morrison (1979) 88 Cal.App.3d 873, 879-883, 153 Cal.Rptr. 865.) 5

In any event, the effect of the amendment is to allow the introduction of tests taken under the Uniform Act to determine paternity.  Section 7541 thus authorizes the husband to challenge paternity based on blood test evidence in certain circumstances.

If section 7541 subdivision (a) was solely applicable, and if the blood tests results showed that Mr. O. was the biological father, the question of paternity would, prima facie, be resolved by finding that he is the father of the two children, and is therefore responsible for their support.

3. Section 7541, subdivision (b).

Section 7541, subdivision (b), states:  “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․”

The two-year limitation apparently springs from the concluding recommendation in the Stanford Law Review Article:  “The legislature should address itself squarely to the problem of defining a period after the birth of a child during which biological paternity will be determinative of a husband's duty to support his wife's child, and it should announce clearly that after this period has expired biological nonpaternity shall be irrelevant to the existence of this duty.”  (Hoffman, Recent Developments, California 's Tangled Web:  Blood Tests and the Conclusive Presumption of Legitimacy, supra, 20 Stan.L.Rev. 754, 765;  see also In re Marriage of Freeman, supra, 45 Cal.App.4th 1437, 1446, 53 Cal.Rptr.2d 439.)   However, despite the recommendation, the Legislature did not state that biological parenthood was irrelevant after the two-year period expires.   Instead, it continued to allow biological parenthood to govern after two years by requiring the court to follow the results of blood tests ordered under section 7551.   Thus, section 7551 provides a safety valve for cases such as this one, in which discovery was delayed due to the concealment of the true facts by the mother.

4. Summary.

 The effect of sections 7540 and 7541 is that “Genetic parenthood established by blood tests trumps a presumption based on the cohabitation of a married couple.”  (In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1225, 30 Cal.Rptr.2d 893.)   The Moschetta case also refers to the two-year provision as an exception to the “blood test override,” although that exception was not in issue in that case.  (Ibid.)  The exception is in issue here.

If the two-year provision applies here, David would be unable to bring a motion for blood tests under section 7541 in order to challenge the section 7540 presumption of paternity.   Conversely, if the two-year provision is found to be inapplicable, David could bring such a motion, and section 7541 would apply to resolve the paternity issue on the basis of the results of the blood tests.   Since those tests show that Mr. O. is the biological father of the two children, his biological parenthood would be presumptively recognized, and David would not be conclusively presumed to be their father.   The parties therefore debate the applicability of the two-year provision to this case.

THE TWO-YEAR LIMITATION PERIOD OF SECTION 7541

 In support of his contention that the two-year limitation period of section 7541, subdivision (b) is inapplicable, David cites County of Orange v. Leslie B., supra, 14 Cal.App.4th 976, 17 Cal.Rptr.2d 797.   In that case, the Orange County district attorney filed an action to establish paternity and to obtain support for Jennifer K.   The complaint named Gregory Z. and Leslie B. as defendants.   Gregory Z. was married to Jennifer's mother at the time Jennifer was conceived but blood tests established that Leslie B. was Jennifer's biological father.   In defense of the action, Leslie B. sought to nullify the trial court's finding that he was the natural and legal father of Jennifer by relying on the presumption of former Evidence Code section 621.   The court held that Leslie B. could not use former Evidence Code section 621 to protect himself from assuming any responsibility for the child he fathered.  (Id., at p. 980, 17 Cal.Rptr.2d 797.)   The court said:  “Although the presumption contained in [former] section 621 is ‘conclusive,’ courts have refused to apply it when its underlying policies are not furthered.”  (Ibid.)  The court then considered those policies, as discussed below, and declined to apply the presumption.

Despite the fact that Leslie B. argued that the blood tests were irrelevant because they were performed more than two years after the child's birth, i.e., they were voluntarily taken twelve years after the birth of Jennifer, the court did not discuss the issue of whether the tests were untimely, noting only that Jennifer was already three years' old when the limitation was enacted into law.  (County of Orange v. Leslie B., supra, 14 Cal.App.4th 976, 980, fn. 3, 17 Cal.Rptr.2d 797.)   The court then found the presumption inapplicable under the facts of that case.   It therefore affirmed the trial court's finding that Leslie was the natural and legal father of Jennifer.

We agree with Rebecca that the case is not helpful to David because the court's finding that the presumption was inapplicable was not based on the two-year rule, but rather on more general considerations discussed below.

No other case supports David's contention that the two-year limitation of section 7541, subdivision (b) is inapplicable.   In adopting section 7541, subdivision (b), the Legislature specifically provided that the husband's motion has to be filed “not later than two years from the child's date of birth.”  (§ 7541, subd. (b).)  It did not make any provision for delayed discovery of a paternity issue, nor did it consider the situation here, in which the mother fraudulently conceals the true facts of her infidelity from her husband.

We therefore find that the two-year provision of section 7541 applies here, and that David was therefore precluded from bringing a motion to challenge the presumption of section 7540 under section 7541, subdivision (b).

Nevertheless, as David points out, he did not bring a motion.   Instead, the family mediator recommended blood tests to the court when the issue arose in the dissolution proceeding, and Judge J. McIntyre ordered blood tests under section 7551.

We therefore turn to the issue of whether blood tests ordered under section 7551 rebut the presumption of paternity in section 7540.

THE UNIFORM ACT ON BLOOD TESTS TO DETERMINE PATERNITY

 As noted above, section 7541, subdivision (a), provides that the presumption of section 7540 is rebutted if the results of blood tests performed pursuant to the Uniform Act on Blood Tests to Determine Paternity (§ 7550, et seq.) show that the husband is not the father of the child.   In such a case, section 7541, subdivision (a) provides that “the question of paternity of the husband shall be resolved accordingly.”

Here, blood tests were ordered pursuant to section 7551, a part of the Uniform Act on Blood Tests to Determine Paternity.   Section 7551 provides:  “In a civil action or proceeding in which paternity is a relevant fact, the court may upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved ․ order the ․ alleged father to submit to blood tests.”

Section 7554 provides that:  “If the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly.”

Rebecca contends that section 7551 applies, by its terms, only when paternity is a relevant fact.   She argues that paternity is not a relevant fact after the two-year period has passed, because the conclusive presumption of section 7540 applies.

We agree with David that her argument is essentially circular:  Rebecca argues that paternity is not a relevant fact because the two-year limitation period applies and that the two-year limitation period applies because paternity is not a relevant fact.

David also points out that section 7554 derives from section 10 of the Uniform Act on Paternity, 9B U.L.A., page 362.   Other states that have adopted the substance of this section have applied blood test results to overcome the presumption that a child born in wedlock was legitimate.   (Bartlett v. Com. ex rel. Calloway (Ky.1986) 705 S.W.2d 470;  Simmons v. Simmons (Ky.App.1972) 479 S.W.2d 585.   See also Queal v. Queal (1992) 179 A.D.2d 1070, 579 N.Y.S.2d 527, 528;  State ex rel. Oldaker v. Fury (1984) 173 W.Va. 428, 317 S.E.2d 513;  and In re Marriage of Schneckloth (Iowa 1982) 320 N.W.2d 535, 538.)

We conclude that, since the trial court exercised its discretion to order blood tests under section 7551, sections 7541, subdivision (a), and 7554 require us to resolve the issue of paternity by finding, in accordance with the undisputed results of the blood tests, that David is not the biological father of the minor children.   Accordingly, the presumption of paternity provided by section 7540 has been effectively rebutted.

DUE PROCESS ISSUES

1. Rebecca's Due Process Contention.

 As noted at the beginning of this opinion, several courts have held that the presumption of section 7540 should not be applied when application does not further the policies underlying the presumption.   Rebecca contends that the presumption of section 7540 should be applied here because application would further the policy of protecting the integrity of the family unit.   She argues that the presumption is a conclusive presumption, not a rebuttable one, because it states a rule of substantive law that requires us to uphold the social policy that protects the integrity of the family unit.   She cites Michael H. v. Gerald D. (1989) 491 U.S. 110, 119, 109 S.Ct. 2333, 2340, 105 L.Ed.2d 91, and our Supreme Court's opinion in Estate of Cornelious, supra, 35 Cal.3d 461, 464-465, 198 Cal.Rptr. 543, 674 P.2d 245.

In Michael H. v. Gerald D., supra, 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91, the Supreme Court considered a claim that the presumption of legitimacy in former Evidence Code section 621 infringed upon the due process rights of a man who wishes to assert paternity of a child born to the wife of another man.   In that case, Michael H. attempted to establish his paternity of a child born during the marriage of the mother and Gerald D. Gerald D. defended by invoking the presumption of former Evidence Code section 621.   Michael H. attacked the constitutionality of former Evidence Code section 621.   The court first rejected his procedural due process claim, saying:  “While [former Evidence Code] § 621 is phrased in terms of a presumption, that rule of evidence is the implementation of a substantive rule of law.   California declares it to be, except in limited circumstances, irrelevant for paternity purposes whether a child conceived during, and born into, an existing marriage was begotten by someone other than the husband and had a prior relationship with him.”  (Id., at p. 119, 109 S.Ct. at p. 2340.)

The court then proceeded to the substantive due process issue, i.e., the question of whether Michael had a constitutionally protected liberty interest in his relationship with the child.   The court found no such interest, noting that the presumption of legitimacy was fundamental to our law, and the presumption acted against his claim.

The court cited Lehr v. Robertson (1983) 463 U.S. 248, 262, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614:  “[t]he significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring.”  (Michael H. v. Gerald D., supra, 491 U.S. 110, 128, 109 S.Ct. 2333, 2345, 105 L.Ed.2d 91.)  “Where, however, the child is born into an extant marital family, the natural father's unique opportunity conflicts with the similarly unique opportunity of the husband of the marriage;  and it is not unconstitutional for the State to give categorical preference to the latter.”  (Id., at p. 129, 109 S.Ct. at p. 2345.)   The court found that California has given such a preference to the husband of the marriage:  “It is a question of legislative policy and not constitutional law whether California will allow the presumed parenthood of a couple desiring to retain a child conceived within and born into a marriage to be rebutted.”  (Id., at pp. 129-130, 109 S.Ct. at p. 2345.)

In Estate of Cornelious, supra, 35 Cal.3d 461, 464-465, 198 Cal.Rptr. 543, 674 P.2d 245, our Supreme Court confirmed that the presumption of section 7540 is a rule of substantive law which promotes important social policies, including preservation of the integrity of the family unit.

In the earlier case of In re Lisa R. (1975) 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123, our Supreme Court considered the due process issue and allowed Victor R. to introduce evidence that he was the natural father of Lisa R., despite the presumption that the child of a married woman is the child of the marriage.   The court adopted a balancing test:  “The question whether appellant, as one claiming to be Lisa's natural father, can rebut the presumption that Lisa is the issue of her mother's marriage must thus be resolved by weighing the competing private and state interests.”  (Id., at p. 648, 119 Cal.Rptr. 475, 532 P.2d 123.)

The private interests of Victor R., the alleged biological father, were then examined and weighed against the countervailing interests of the state in Lisa's welfare.   In that case, Victor R. had resided with Lisa's mother as a family unit for four or five months, he had contributed to Lisa's support, and he was deprived of custody by the actions of Lisa's mother.   He consistently sought to assert his rights as Lisa's father.

The state's interests in Lisa's welfare, in relieving the stigma of illegitimacy, and in promoting marriage were considered in support of the presumption.   However, our Supreme Court found that the interests of Victor R. prevailed, and the presumption was found to be a denial of due process.  (See, generally, Wheeler, A Father 's Right to Know His Child:  Can It Be Denied Simply Because The Mother Married Another Man? (1987) 20 Loyola L.A.L.Rev. 705.)

In the more recent case of Johnson v. Calvert (1993) 5 Cal.4th 84, 19 Cal.Rptr.2d 494, 851 P.2d 776, our Supreme Court discussed Michael H. v. Gerald D. in the context of a surrogacy case.   It characterized the Michael H. case as holding that “a plurality of the court held that a state may constitutionally deny a man parental rights with respect to a child he fathered during a liaison with the wife of another man, since it is the marital family that traditionally has been accorded a protected liberty interest, as reflected in the historic presumption of legitimacy of a child born into such family.”   (Johnson, supra, at p. 99, 19 Cal.Rptr.2d 494, 851 P.2d 776.)   Of course, the interests of a surrogate mother have not been traditionally protected, and the court found the case more supportive of the claim of the married couple who sought a surrogate in order to have a child.  (Ibid.)

Although the foregoing cases support Rebecca's claim that the presumption of section 7540 embodies a social policy that protects the integrity of the family unit, due process does not require this result.   As Michael H. holds, due process does not require application of the presumption and the Legislature may therefore decide that the presumption may be rebutted.   In California, the Legislature has done so by adopting sections 7541, 7551, and 7554.

In addition, policy considerations favoring the preservation of the integrity of the family unit do not apply when the family unit has been dissolved.   At this point, there is no family unit to protect.   The family unit was destroyed by Rebecca's own actions, i.e., “it is the marital family that traditionally has been accorded a protected liberty interest․”  (Johnson v. Calvert, supra, 5 Cal.4th 84, 99, 19 Cal.Rptr.2d 494, 851 P.2d 776.)

Thus we are not concerned with maintenance of an existing family unit, but rather with the question of whether due process considerations require invocation of the presumption of section 7540.   We find that they do not, because the Legislature has decreed otherwise, and because there is no longer a marital unit to be preserved.

2. David's Due Process Contention.

 David raises a closely related due process issue by contending that he has a due process right to a correct determination of biological parentage.   Applying this right, he argues that the “conclusive” presumption of section 7540 must yield to biological reality.   Although conceding that the State has an interest in protecting the integrity of the family unit, he points out that the Legislature has provided an overriding rule of substantive law when undisputed blood test evidence shows that the husband is not the biological father.   He argues that the Legislature has thus determined that, when conclusive blood test evidence is available, the law must conform to the scientific truth.  (Contra, Susan H. v. Jack S. (1994) 30 Cal.App.4th 1435, 1441, 37 Cal.Rptr.2d 120;  Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1116, fn. 4, 39 Cal.Rptr.2d 535.)   Accordingly, he finds no due process impediment to applying sections 7541, subdivision (a), and 7554 to override the presumption of section 7540.

In support of his contention that he has a constitutional right to a correct determination of biological parentage, David cites Salas v. Cortez (1979) 24 Cal.3d 22, 154 Cal.Rptr. 529, 593 P.2d 226.   In that case, the issue was whether due process required the appointment of counsel to represent indigent defendants in state prosecuted paternity actions.   Our Supreme Court held that due process required the appointment of counsel for such indigent defendants.   It said:  “A determination of paternity has grave implications for all concerned-the alleged father, the child, the mother and the state.   This court has termed the interest in maintaining a parent-child relationship ‘a compelling one, ranked among the most basic of civil rights․'  [Citations.]   Freedom from an incorrect imposition of that relationship on either a parent or a child is an equally compelling interest.”  (Id., at p. 28, 154 Cal.Rptr. 529, 593 P.2d 226, emphasis added.)

We therefore conclude that due process principles do not prevent the Legislature from specifying that blood test results override the presumption of section 7540.  (In re Marriage of Moschetta, supra, 25 Cal.App.4th 1218, 1225, 30 Cal.Rptr.2d 893.)   In other words, the Legislature has determined that the trial court has the power to order blood testing whenever paternity is a relevant fact (§ 7551), and it has determined that the question of paternity shall be decided on the basis of the blood test results (§§ 7540, subdivision (a) and 7554).

In view of this conclusion, we do not need to further discuss David's contention that he has a due process right to a correct determination of biological parentage, and his contention that the two-year limitation of section 7541, subdivision (b), is unconstitutional on due process grounds.

SHOULD THE PRESUMPTION OF SECTION 7540 BE APPLIED HERE?

 As noted above, courts have refused to apply the presumption of section 7540 when such application would not further the policies underlying that section.   We agree with David that the cases demonstrate the reasons why the policies underlying section 7540 would not be furthered by applying it here.

In Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, 34 Cal.Rptr.2d 868, Timothy M. was proven to be the biological father of Lindsay by scientific testing.   When ordered to pay child support, he defended by asserting the presumption that Lindsay was the child of the marriage of her mother and Peter S.   The facts of that case are similar to the facts here in that the mother initially encouraged Peter S. to believe that he was the child's father, but then told him during divorce proceedings that the child was not biologically his.   At that time the child was slightly over two years old.  (Id., at p. 1235, 34 Cal.Rptr.2d 868.)   Following this disclosure, Peter “S. continued to see the child but not as a parent.”  (Ibid.)  Peter S. then agreed to a blood test and, when the test confirmed that he was not the father, he agreed to a finding that there were no children of the marriage.  (Ibid.)

When Timothy M. sought to invoke the conclusive presumption of paternity in section 7540 to avoid paying child support, the trial court refused to apply the presumption, based on the balancing test stated in Lisa R.   Instead, it ordered DNA tests that showed that Timothy M. was the biological father.   The court therefore announced an intention to require Timothy M. to pay child support after the expected appeal was determined.  (Alicia R. v. Timothy M., supra, 29 Cal.App.4th 1232, 1236, 34 Cal.Rptr.2d 868.)

The appellate court affirmed, noting that the marriage of Peter S. and the child's mother had been dissolved with a court finding that there were no children of that marriage.   There was, therefore, no family unit, and, under the unusual facts there, no parental relationship between Peter S. and Lindsay.   Accordingly, the appellate court approved the trial court's disregard of the presumption.   A distinguishing feature of this case is that here there are parental bonds between David and the children.

The court in Alicia R. relied on the earlier case of County of Orange v. Leslie B., supra, 14 Cal.App.4th 976, 17 Cal.Rptr.2d 797, discussed above.   In that case, the natural father appealed the trial court's refusal to apply the presumption of former Evidence Code section 621.   The appellate court said:  “Although the presumption contained in [former Evidence Code] section 621 is ‘conclusive,’ courts have refused to apply it when its underlying policies are not furthered.  [Citations.]   Traditionally, it was stated that the presumption was designed to preserve the integrity of the family unit, protect children from the legal and social stigma of illegitimacy, and promote individual rather than state responsibility for child support.  [Citations.]   None of these policies would be furthered by application of the presumption to the facts at hand and the trial court properly refused to apply it.”  (Id., at p. 980, 17 Cal.Rptr.2d 797.)   Specifically, the court held that the presumption could not be applied by a defendant to protect himself from assuming responsibility for the child he fathered.   The court then applied the balancing test of Lisa R. and held Leslie B. to be the father of Jennifer.

Subsequently, our colleagues in Division Three declined to apply the presumption of section 7540 in Comino v. Kelley, supra, 25 Cal.App.4th 678, 30 Cal.Rptr.2d 728.   In that case, a man filed an action to establish a parental relationship with a minor.   He alleged that he was the presumed father of the minor because he fathered the child and had lived with the mother for the first two and a half years of the minor's life.   However, the mother had previously entered into a marriage of convenience with another man.   The mother therefore asserted the presumption of former section 621.   The court again refused to apply the conclusive presumption of former section 621 because it found that the policies underlying the section would not be served by applying it in this situation.

 We agree with our colleagues in Division Three that the presumption of section 7540 should not be applied when, as here, application of the presumption does not further the policies underlying the presumption.   When blood tests conclusively establish that the presumed father is not the biological father the question of paternity must be resolved on the basis of the fact of the blood test results, rather than the fiction of the presumption. (§§ 7541, 7554.)

We therefore disagree with Michael H. v. Gerald D., supra, 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 to the extent it holds that California has declared that biological fatherhood is irrelevant for paternity purposes.   (Id., at p. 119, 109 S.Ct. at p. 2340.)   As our Supreme Court has stated, Michael H. held that the state may constitutionally use the presumption of section 7540 to uphold the integrity of the family unit from challenge by a biological father who is not married to the mother.  (Johnson v. Calvert, supra, 5 Cal.4th 84, 99, 19 Cal.Rptr.2d 494, 851 P.2d 776.)

Similarly, in In re Melissa G. (1989) 213 Cal.App.3d 1082, 261 Cal.Rptr. 894, a dependency proceeding, the court said:  “The Supreme Court's affirmance in Michael H. was limited to situations in which the husband and wife wish to raise the wife's child jointly;  Justice Scalia left open the possibility that a constitutionally protected interest might be implicated where no such union exists.”  (Id., at p. 1088, 261 Cal.Rptr. 894.)   The court held application of the presumption of former Evidence Code section 621 was unconstitutional because “the statute's classification does not serve the interests it was designed to protect.”  (Id., at p. 1089, 261 Cal.Rptr. 894.)

The substantive law principles relied on in Michael H. must be considered with the other substantive law principles stated in sections 7541, subdivision (a), and 7554.   Taken together, these principles allow the court to order blood tests which may establish that the husband is not the biological father of the children, and thus is not liable for continuing child support in a dissolution action.   In such a case, the issue is the proper interpretation of the statutes, and due process principles do not apply.  (Michael H. v. Gerald D., supra, 491 U.S. 110, 129-130, 109 S.Ct. 2333, 2345, 105 L.Ed.2d 91:  “It is a question of legislative policy and not constitutional law whether California will allow the presumed parenthood of a couple desiring to retain a child conceived within and born into a marriage to be rebutted.”)

Here, the presumption of section 7540 is not conclusive because the policies underlying section 7540, primarily preservation of the family unit, would not be served by such an application because there is simply no family unit remaining.  (Comino v. Kelley, supra, 25 Cal.App.4th 678, 30 Cal.Rptr.2d 728;  County of Orange v. Leslie B., supra, 14 Cal.App.4th 976, 17 Cal.Rptr.2d 797.)   We therefore decline to apply the presumption of section 7540 here.

This is not a case in which the presumption of section 7540 is used to defend the integrity of the family from outside attack.   Instead, the presumptive father attacked the presumption by presenting blood test evidence, and the mother invoked the presumption in an attempt to have her husband continue to pay child support after dissolution.   In such a case, there is no continuing family unit to preserve.  (Alicia R. v. Timothy M., supra, 29 Cal.App.4th 1232, 34 Cal.Rptr.2d 868.)

Again, we agree with our colleagues in Division One:  “[T]he statutory presumption is not applicable in all cases.   Because, by its terms the conclusive presumption prevents presentation of evidence with respect to biological paternity, it has been the subject of a number of constitutional challenges.   The courts have resolved these challenges by balancing the public and private interests which arise in particular cases.   Thus the cases have consistently held that where the state does not have a legitimate interest in enforcing the conclusiveness of the presumption, an interested party may, notwithstanding the presumption, present evidence which establishes that a husband is not the biological father of his wife's child.  [Citations.]”  (In re Marriage of Freeman, supra, 45 Cal.App.4th 1437, 1446, 53 Cal.Rptr.2d 439.)

Thus, whether considered as a matter of constitutional law or not, the application of the presumption of section 7540 to this case would not further the policies underlying that section.   We therefore decline to apply the presumption when doing so would override the specific declaration of the Legislature that, when blood tests are ordered under section 7551, the results of the blood tests are conclusive because section 7554 provides that “the question of paternity will be determined accordingly.”

SIGNIFICANCE OF THE TRIAL COURT'S DECISION TO ORDER BLOOD TESTING

 Because the Legislature has decided that, if blood tests are ordered by the court under section 7551, the question of paternity must be decided on the basis of blood test results, this case demonstrates that the trial court's decision to order blood tests is a significant one which should not be made routinely.

Judge J. McIntyre, when presented with the family mediator's recommendation for blood testing, ordered blood testing under section 7551.   This would have been an appropriate case for the trial court to refuse to exercise its discretion to order blood testing.   After all, David is the only father these children has ever known, even if he was deceived and tricked into assuming this role.   The court should have considered this fact, and the fact that the biological father has no interest in parenting these children.   The court should also have considered that Lee O. had no relationship with the children and should have declined to order the blood tests on grounds that the best interests of the children would not be served by a finding that Lee O. is their father.   But it did not do so, and Judge J. McIntyre's decision to order payment of pendente lite child support based on paternity, and the decision to order blood tests to determine paternity were never appealed, challenged by writ, or objected to by either party.

When the blood test results were presented to Judge Van Frank, he attempted to disregard the results of the blood tests.   However, at that time, it was too late in the process to ignore the blood test results.   In doing so, the trial court failed to follow sections 7554 and 7540, subdivision (a).   At that point, the statutes require that paternity be determined on the basis of the results of the blood tests.   As a result, the court is now forced by the blood test results to disrupt the social relationship between the children and David R., the only father they have ever known, to determine that Lee O., an apparent stranger to the children, is their “father.”   Although Judge Van Frank was understandably concerned that this was not a proper result, the statute did not give him any discretion at that time.   David only appealed from the final judgment of Judge Van Frank and we are constrained to find that that judgment was in error because it required David to pay child support for the children, despite the results of the blood tests.   If, as in Freeman, blood tests had not been ordered, Judge Van Frank would have been able to decide paternity differently.

 More generally, we think that the policies underlying section 7540 should be considered by the trial court before ordering blood tests under section 7551.   For example, blood tests should not be ordered when the presumption is invoked by a family unit against a biological father because the court would be bound to follow the results of the blood tests.   Similarly, when there is a strong bond between the former husband and the children, as there was here, blood tests should not be ordered unless the trial court is prepared to determine paternity on the basis of the results of those tests.   The problem in this case is that the trial court ordered blood tests but then tried to avoid determining paternity on the basis of the blood test results.   In other words, the discretionary ability of the trial court under section 7551 acts as a safety valve in cases in which the two-year limitation period has passed.   Notwithstanding the expiration of the two-year period, the Legislature has told us that the trial court retains the discretion to order blood tests but it must then determine paternity on the basis of the blood test results.

Again, we emphasize that the trial court must consider the relevant factors when it is asked to order blood tests, and not when the results of the blood tests are received.   Under the current statutory scheme, the only opportunity the trial court has to exercise its discretion is when it grants or denies a request for an order requiring blood testing.   Since the paternity decision must follow the blood test results, blood tests should be ordered only if the trial court decides that paternity should be determined solely on the basis of the blood test results.

 We therefore urge a trial court which is faced with a motion for discretionary blood testing under section 7551, to carefully consider whether it wishes paternity to be determined solely by the blood test results.   In making its discretionary decision, the trial court should consider the existence and strength of the existing social relationship which would potentially be disrupted by a decision based on the blood test results.   The court should also consider the reasons why the husband did not file a motion under section 7541, together with such factors as the ages of the children, the conduct of the wife, and the potential estoppel and waiver issues that can arise when the husband does not act promptly to protect his rights.  (In re Marriage of Freeman, supra, 45 Cal.App.4th 1437, 1451, 53 Cal.Rptr.2d 439.)

 We emphasize, however, that the court may decline to order discretionary blood testing under section 7551 and thereafter decide to impose a child support obligation based on the husband's social relationship with the child.   If blood tests are not ordered, a decision based on social relationships may well be the proper decision under the present statutory scheme, particularly when older children are involved.  (In re Marriage of Freeman, supra, 45 Cal.App.4th 1437, 1447-1448, 53 Cal.Rptr.2d 439.)

SUGGESTED LEGISLATIVE RECONSIDERATION OF THE STATUTORY SCHEME

We believe the current statutory scheme should not require the court to determine paternity on the basis of the blood tests.   A better system would allow the court to order blood tests on its own motion or on suggestion or motion of a party (§ 7551) but would allow the trial court to exercise its discretion to determine paternity on the basis of the blood tests.   This could be accomplished by changing “shall” to “may” in sections 7541, subdivision (a), and 7554.

If this change were made, the trial court, after receiving the blood test results, could consider such factors as the age of the child, the presence or absence of bonding and a close familial relationship between the presumed father and the child, and/or the presence or absence of any relationship with the biological father.

The Legislature may also wish to consider the validity of the broad assertion in Freeman that “during the very early years of a child's life, the support obligation is based solely on actual or presumed biological paternity.   Thereafter, notwithstanding evidence of biological paternity, a husband's obligation to support a child may be found in the nature and extent of the husband's social relationship with the child.”  (In re Marriage of Freeman, supra, 45 Cal.App.4th 1437, 1440-1441, 53 Cal.Rptr.2d 439.)   In other words, the Legislature may desire to give us further guidance on the question of when the trial court has the discretion to balance personal and social parent-child relationships against genetic relationships when determining parentage.6

Unless and until the Legislature addresses these issues and amends the statutes, a trial court should be very circumspect in exercising its discretion to order blood tests under section 7551 after the child is two years old.   As it stands, the statutes are a trap for the trial court that orders blood tests routinely without realizing the significance of its decision.

DISPOSITION

The judgment is reversed.   Appellant is to recover his costs on appeal.

I respectfully dissent.

I agree with much of the analysis in the majority opinion.   I disagree, however, with application of the analysis to the facts before us.   I would affirm the decision of the trial court that David was the father of the minor children and was therefore obligated to pay child support.

I agree with the conclusion of the majority that under the existing statutory scheme the opportunity for the trial court to exercise its discretion comes at the time it decides whether or not to order a paternity test under Family Code section 7551.   I also agree that under the statutes as they are now written, once the results of the paternity test are properly before the court, the court is obligated under Family Code sections 7541, subdivision (a), and 7554 to make a finding of paternity in accordance with those results.  (See maj. opn., ante, at p. 732.)

I disagree with the majority's conclusion, however, that the exercise of discretion by the trial court in ordering paternity testing in the present case is beyond the reach of this court.   And most importantly, I disagree with the weighing of factors in the present case and the finding that “policy considerations favoring the preservation of the integrity of the family unit do not apply” because David and Rebecca are no longer married.  (See maj. opn., ante, at p. 738.)

I. This Court's Ability to Review Order Directing Paternity Testing

The majority notes that “the decision to order blood tests to determine paternity [was] never appealed, challenged by writ, or objected to by either party.”  (See maj. opn., ante, at p. 742.)

The trial court order directing blood testing was not a final order and was not appealable at the time it was made.  (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 741, 29 Cal.Rptr.2d 804, 872 P.2d 143.)   It would, however, have been reviewable on appeal from the final judgment in the proceeding.   That is the action now before us.   Although the majority opinion states that the decision to order blood tests was never appealed, the opinion also states that Rebecca seeks to uphold the judgment by arguing that paternity was not a relevant fact under Family Code section 7551 and that the court therefore should not have ordered the tests.1  (See maj. opn., ante, at p. 736.)   In my view that argument is sufficient to bring before this court the trial court's exercise of discretion in ordering the tests.

Even if the issue had not been raised by the parties, I would agree with Justice Kaufman that “this court has the inherent power to decide any issue deemed necessary for a proper disposition of the case whether or not it was originally presented or briefed by the parties.  [Citations.]”  (Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 495, 144 Cal.Rptr. 474.   The fact that the importance of an issue was not fully understood by the parties should not be sufficient to insulate it from review.

II. The Trial Court's Exercise of Discretion in Ordering Paternity Testing

As the majority has stated, it has been held that once the blood tests are before the court, the court is obligated to follow the results of those tests in determining paternity.  (See In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1225, 30 Cal.Rptr.2d 893 [“[T]he intent of the statute is undeniable:  Genetic parenthood established by blood tests trumps a presumption based on the cohabitation of a married couple.”].)

The record in the case indicates that the order for paternity testing was made at the suggestion of the family court mediator and was not the subject of much reflection by the trial court.   In view of this court's conclusion that the trial court is bound by the test results once they are before the court, the exercise of discretion by the trial court in ordering the tests takes on added importance.

In this particular case I would hold that the trial court abused its discretion when it ordered the blood testing.   Reviewing all the factors that should have been considered by the court in exercising its discretion to order such a test, I conclude that the policy interests underlying the presumption of Family Code section 7540 would not be served in the present case by overriding the conclusive presumption of paternity.   Thus, there was not a reason even to order or consider the tests.

Previous cases have not dealt with the potentially inconsistent results that might follow from application of Family Code section 7541, which requires that a motion for blood tests to determine paternity be brought within two years of the child's birth, and Family Code section 7551 which leaves the ordering of tests to the discretion of the court.   However, although earlier cases have not identified the decision to order blood tests as the moment for the court to exercise its discretion, courts have for generations been exercising discretion around exactly these same issues.

Characterization of the basis for the exercise of this discretion has been variously stated in the cases, but generally is founded on the statement of the California Supreme Court in In re Lisa R. (1975) 13 Cal.3d 636, 648, 119 Cal.Rptr. 475, 532 P.2d 123, that “The question whether appellant, as one claiming to be Lisa's natural father, can rebut the presumption that Lisa is the issue of her mother's marriage must thus be resolved by weighing the competing private and state interests.”  (Fn. omitted.)   In that case the court permitted appellant to offer proof that he was the father of Lisa R. in spite of the fact that Lisa's mother had been married to another man at the time of Lisa's birth.   Lisa's mother and her mother's husband both were dead at the time of the proceedings in which appellant sought to obtain custody of Lisa, and Lisa, who was about six years old, was a ward of the court.   Appellant had lived with Lisa and her mother at the time of Lisa's birth and had maintained a relationship with both of them for a period after Lisa was born.   Appellant appeared as Lisa's father on her birth certificate.  (Id., at p. 649, 119 Cal.Rptr. 475, 532 P.2d 123.)

The state's interests favoring the conclusive presumption of Family Code section 7540 have been stated as “(1) preservation of the integrity of the family;  (2) protection of the innocent child from the social stigma of illegitimacy;  and (3) a desire to have an individual rather than the state assume the financial burden of supporting the child.”  (In re Marriage of B. (1981) 124 Cal.App.3d 524, 529-530, 177 Cal.Rptr. 429, fn. omitted.)   It is apparent that under the facts appearing in In re Lisa R., supra, these interests all argued in favor of permitting appellant to present evidence of his paternity.

Other courts have permitted evidence to rebut the presumption of paternity on similarly compelling facts.   Thus, in County of Orange v. Leslie B. (1993) 14 Cal.App.4th 976, 17 Cal.Rptr.2d 797, in an appeal by the man with whom the minor's mother had been having an affair at the time the minor was conceived, the court refused to apply the presumption to permit appellant to avoid his obligations of support.   Neither the appellant nor the mother's husband had known of the existence of the minor until she was almost 11 years old;  at that time the mother told the minor that appellant was her father.  (Id., at p. 979, 17 Cal.Rptr.2d 797.)   The minor visited appellant several times after that, and appellant told the minor on at least one occasion that he was her father.  (Ibid.)  The parties voluntarily submitted to blood tests which showed a very high probability that appellant was the minor's father.  (Ibid.)

The court noted first that appellant was attempting to use the presumption to avoid assuming responsibility for the child he had fathered and thus was not in a position to raise the due-process arguments of biological fathers who sought to assert their paternal rights.  (County of Orange v. Leslie B., supra, 14 Cal.App.4th at p. 980, 17 Cal.Rptr.2d 797.)   Applying the balancing test of Lisa R., the court then held that here there was no marital union to disrupt as the brief marriage of the mother had ended well before the birth of the minor and the minor, who had not met the husband until she was 13, knew he was not her father.  (Id., at p. 982, 17 Cal.Rptr.2d 797.)   Although the “stigma of illegitimacy” is not to be considered following passage of the Uniform Parentage Act, that would in any event not support the presumption in the present case.  (14 Cal.App.4th at p. 983, 17 Cal.Rptr.2d 797.)   And finally, the state's interest in providing support for the child was satisfied by the finding that appellant was the minor's father.  (Ibid.)  As stated by the trial judge in that case, “ ‘[A]pplying the [presumption] leads to an absurd result that defies reason and common sense.   To apply the [presumption] is to rely upon a fiction to establish a legal fact which we know to be untrue, in order to protect policies which in this case do not exist.’ ”  (Ibid.)

In Comino v. Kelley (1994) 25 Cal.App.4th 678, 30 Cal.Rptr.2d 728, the appeal was brought by the child's mother who sought to overturn the trial court's finding that a man other than the mother's husband was the child's father.   The mother and her husband had entered into a marriage of convenience and according to the appellate decision “did not have a sexual relationship.”   (Id., at p. 681, 30 Cal.Rptr.2d 728.)   When the mother became pregnant she told the father it was his child.   Before the birth of the child the mother moved into the father's home, and he was present when the child was born.   (Id., at p. 682, 30 Cal.Rptr.2d 728.)   The mother, the father and the child lived together for most of the next two and a half years, and there was testimony at trial that the father and the child “became ‘well-bonded.’ ”   (Ibid.)  When the child was 28 months old the mother moved out and moved into the home of her husband, who had by then filed for dissolution of the marriage.   The father then filed suit against the mother and her husband to establish his parental relationship.  (Ibid.)

Relying on the decision in County of Orange v. Leslie B., supra, 14 Cal.App.4th 976, 17 Cal.Rptr.2d 797, the court applied the balancing test of In re Lisa R., supra, and concluded that “none of the policies underlying the presumption of paternity [contained in Family Code section 7540] would be served by its application.”  (Comino v. Kelley, supra, 25 Cal.App.4th at p. 684, 30 Cal.Rptr.2d 728.)   There was no existing family unit in which the husband and the minor had ever been involved together;  the interest in providing a father for the minor would not be furthered by preventing the minor from having a relationship with the only father he had ever known;  and the state's interest in support would be furthered by allowing the father to assume the responsibility he sought.  (Id., at pp. 684-685, 30 Cal.Rptr.2d 728.)

III. Application to the Present Case

Applying this analysis to the case now before us, I would find that the factors discussed in these cases would support a decision denying David's request to present blood test evidence to rebut the presumption of paternity.   The majority opinion minimizes the importance of maintaining family integrity in this case, stating “there is no family unit to protect.   The family unit was destroyed by Rebecca's own actions․”  (See maj. opn., ante, at p. 738.)   I disagree, and believe that preservation of the existing family relationships should be an essential consideration in the case before us.   The court in In re Marriage of Freeman (1996) 45 Cal.App.4th 1437, 53 Cal.Rptr.2d 439 noted that “the state has a well-recognized interest in preserving and protecting the dignity of parental relationships, especially when a marriage is being dissolved and instability is being introduced into a child's life.”  (Id., at p. 1450, 53 Cal.Rptr.2d 439.)   I agree.

David is the only father these children have known.   He has been a constant in their lives since they were born.   To conclude that there is no interest to protect is to deny the importance of the social relationship the Legislature has been at pains to preserve.

The court in In re Marriage of Freeman, supra, 45 Cal.App.4th 1437, 53 Cal.Rptr.2d 439, discussed the 1980 amendments to what was then Evidence Code section 621, noting that “ ‘The conclusive presumption ․ has been retained subject to what amounts to a two-year statute of limitations on a husband's right to introduce such evidence [i.e., reliable evidence on the issue of paternity].’ ”  (Id., at p. 1445, 53 Cal.Rptr.2d 439, quoting In re Marriage of B. (1981) 124 Cal.App.3d 524, 530, 177 Cal.Rptr. 429.)   The court went on to explain the reasoning behind that two-year limitation period, as stated in a law-review article which preceded, and probably influenced, the legislation, on this issue:  “ ‘ “In the case of a young child the most palpable relation that anyone has to the child is a biological relationship․   But in the case of an older child the familial relationship between the child and the man purporting to be the child's father is considerably more palpable than the biological relationship of actual paternity.   A man who has lived with a child, treating it as his son or daughter, has developed a relationship with the child that should not be lightly dissolved and upon which liability for continued responsibility to the child might be predicated.   This social relationship is much more important, to the child at least, than a biological relationship of actual paternity.” ’ ”  (In re Marriage of Freeman, supra, 45 Cal.App.4th at p. 1445, 53 Cal.Rptr.2d 439.)

Although we are not to consider the question of illegitimacy, we can certainly acknowledge the impact on the children of suddenly being told by the court that their father is a man they may never even have seen, and the man who was their mother's husband and has always been their father no longer is.   And finally, we must consider the state's interest in support of the children.   While the relative ability of the two men to support the children has not been established, David stated that he would like to have an ongoing relationship with the children and that he still loved and cared for them.   Although the question of support may be less important under these facts than in some other cases because here there are two potential sources of support for the children, David's interest in the well-being of the children would provide an additional reason for finding that no blood tests should have been ordered in the present case.

I would hold that the trial court abused its discretion by ordering the blood tests under Family Code section 7551;  nonetheless, I do not find that the abuse of discretion would require reversal of the court's decision.   As I have discussed, an appropriate exercise of discretion by the court in this case would have led to a decision by the trial court not to order the blood tests.   If the court had not ordered the blood tests it would have been bound by the conclusive presumption of Family Code section 7540 and would have held that David was the father of the children.   That is, in fact, exactly what the court decided.  “ ‘[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.   If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’  [Citation.]”  (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10.)   Thus, although the court abused its discretion by ordering the tests and then erred by not making a finding of paternity in accordance with the test results, I would find that both errors were, under the existing facts, without consequence.   I would therefore affirm.2

FOOTNOTES

1.   The trial court, acting in July 1993, applied former Evidence Code section 621.   Effective January 1, 1994, the substance of that section was readopted as Family Code sections 7540 and 7541.   Since differences between the sections are not material, we will refer to the current statutes.   Accordingly, all statutory references are to the Family Code unless otherwise indicated.

2.   Rebecca also admitted having two abortions during the marriage.   She testified that another man, not her husband nor Mr. O., impregnated her for the aborted fetuses.

3.   In a reversal of the arguments we might expect, Rebecca testified that David was unable to have children, while David asserted he could.   He thus did not contend that section 7540 did not apply because he was an impotent or sterile husband.

4.   The Uniform Act is now found in section 7550 et seq.

5.   In 1975, the Legislature adopted the Uniform Parentage Act.   The provisions of this act are now found in section 7600 et seq.   See particularly, sections 7611 and 7612.

6.   The Legislature may also wish to clarify the applicability of these statutes to various forms of DNA testing, an issue not involved in this case.

1.   Family Code section 7551 begins with the statement that “In a civil action or proceeding in which paternity is a relevant fact, the court may upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, and shall upon motion of any party to the action or proceeding made at a time so as not to delay the proceedings unduly, order the mother, child, and alleged father to submit to blood tests․”Whether the trial court's exercise of discretion in ordering the tests is based on its determination that “paternity is a relevant fact” or simply on “its own initiative” is not of great significance;  as with any exercise of discretion, what is important is that the record should demonstrate that the court's decision was not “capricious or arbitrary” but rather that there was a reasonable basis for the court's action.  (See Bailey v. Taaffe (1866) 29 Cal. 422, 424.)

2.   I also find that the facts before us lend themselves to an estoppel argument as set forth in In re Marriage of Freeman, supra, 45 Cal.App.4th at pp. 1447-1448, 53 Cal.Rptr.2d 439.   However, in light of the resolution I have suggested here, I find it unnecessary to discuss the estoppel claim raised by Rebecca in her brief on appeal.

HOLLENHORST, Associate Justice.

McKINSTER, J. concurs.