The california law in black and white

sec: 3011.

In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:

(a) The health, safety, and welfare of the child.

(b) Any history of abuse by one parent or any other person seeking custody against any of the following:

(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.

(2) The other parent.

(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, "abuse against a child" means "child abuse" as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means "abuse" as defined in Section 6203 of this code.

So why doesnt this LAW apply to my case? I proved the abuse towards my older daughter and myself from the ex, i provided the police reports of the abuse, got medical records, had emails and chat conversations..... but this judge doesnt follow the law. the laws are supposed to protect me and the children. Hell he and his family have been violent toward my husband! we have had everything corroborating everything we have claimed.

sec 7611:
part
(c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:
(1) With his consent, he is named as the child's father on the child's birth certificate.
(2) He is obligated to support the child under a written voluntary promise or by court order.
(d) He receives the child into his home and openly holds out the child as his natural child.

according to this law, my HUSBAND should have been presumed as her father!...did the judge follow it when brought up by the attorney or us? Nope.

sec 7646:

(a) Notwithstanding any other provision of law, a judgment establishing paternity may be set aside or vacated upon a motion by the previously established mother of a child, the previously established father of a child, the child, or the legal representative of any of these persons if genetic testing indicates that the previously established father of a child is not the biological father of the child. The motion shall be brought within one of the following time periods: (1) Within a two-year period commencing with the date on which the previously established father knew or should have known of a judgment that established him as the father of the child or commencing with the date the previously established father knew or should have known of the existence of an action to adjudicate the issue of paternity, whichever is first, except as provided in paragraph (2) or (3) of this subdivision.

(2) Within a two-year period commencing with the date of the child' s birth if paternity was established by a voluntary declaration of paternity. Nothing in this paragraph shall bar any rights under subdivision (c) of Section 7575.

--according to this law, when i filed my motion to set aside paternity i was well within my time limit of 2yrs from BOTH options (date of birth of 7/27/09 and original judgment 12/9/09) Yet it was denied due to untimely. So why was it untimely... it wasnt. We filed the motion in June 2011.

§ 7647.

(a) A court may grant a motion to set aside or vacate a judgment establishing paternity only if all of the following conditions are met:

(1) The motion is filed in a court of proper venue.

(2) The motion contains, at a minimum, all of the following information, if known:

(A) The legal name, age, county of residence, and residence address of the child.

(B) The names, mailing addresses, and counties of residence, or, if deceased, the date and place of death, of the following persons:

(i) The previously established father and the previously established mother, and the biological mother and father of the child.

(ii) The guardian of the child, if any.

(iii) Any person who has physical custody of the child.

(iv) The guardian ad litem of the child, if any, as appointed pursuant to Section 7647.5.

(C) A declaration that the person filing the motion believes that the previously established father is not the biological father of the child, the specific reasons for this belief, and a declaration that the person desires that the motion be granted. The moving party is not required to present evidence of a paternity test indicating that the previously established father is not the biological father of the child in order to bring this motion pursuant to Section 7646.

(D) A declaration that the marital presumption set forth in Section 7540 does not apply.

(3) The court finds that the conclusions of the expert, as described in Section 7552, and as supported by the evidence, are that the previously established father is not the biological father of the child.

(b) The motion shall include a proof of service upon the following persons, excluding the person bringing the motion:

(1) The previously established mother.

(2) The previously established father.

(3) The local child support agency, if services are being provided to the child pursuant to Title IV-D or IV-E of the Social Security Act (42 U.S.C. Sec. 651 et seq. and 42 U.S.C. Sec. 670 et seq.).

(4) The child's guardian ad litem, if any.

---I followed everything. We did everything right. Right paper work, right motion. I even had a declaration from my obgyn stating the date she would have been concieved... and i even had statements (credible) made by the alleged father that he was infertile! Did the judge care? nope.

sec: 3022.3.

Upon the trial of a question of fact in a proceeding to determine the custody of a minor child, the court shall, upon the request of either party, issue a statement of the decision explaining the factual and legal basis for its decision pursuant to Section 632 of the Code of Civil Procedure.

...Maybe i need to request this.

Sec: 3044.

(a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.

....court determined it when they issued the DV restraining order protecting me and my older daughter from him... but its OK for her to visit him (younger)... even though the law states its not in her best interest?.....it sure as hell wasnt rebutted with evidence...The order was granted by another judge (not a temp one either)

7630.

(a) A child, the child's natural mother, a man presumed to be the child's father under subdivision (a), (b), or (c) of Section 7611, an adoption agency to whom the child has been relinquished, or a prospective adoptive parent of the child may bring an action as follows:

(1) At any time for the purpose of declaring the existence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611.

(2) For the purpose of declaring the nonexistence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611 only if the action is brought within a reasonable time after obtaining knowledge of relevant facts. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.

(b) Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under subdivision (d) or (f) of Section 7611.

So maybe we should do this...sounds like by law my husband has the right to file a parentage action to declare his relationship with her.

4. Stability And Continuity Of Environment: Although not reduced to express statutory terms, a significant component of the "best interest" assessment is the policy goal of protecting a stable custody arrangement. "As we have repeatedly emphasized, the paramount need for continuity and stability in custody arrangements--and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker--weigh heavily in favor of maintaining ongoing custody arrangements." [Marriage of Burgess (1996) 13 Cal.4th 25, 32-33, 51 Cal.Rptr.2d 444, 449-450 (emphasis added); see Burchard v. Garay (1986) 42 Cal.3d 531, 538, 229 Cal.Rptr. 800, 804-805]

5. Separation Of Siblings: California policy affords strong protection to sibling relationships. Absent compelling circumstances, such as extraordinary emotional, medical or educational need, an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children's best interest. [Marriage of Williams (2001) 88 Cal.App.4th 808, 814-815, 105 Cal.Rptr.2d 923, 927-998]

Presumed Father

If any of the following are true, a man is presumed to be the father of a child, unless he or the mother proves otherwise to a court:

• he was married to the mother when the child was conceived or born, although some states do not consider a man to be a presumed father if the couple has separated he attempted to marry the mother (even if the marriage was not valid) and the child was conceived or born during the "marriage."
• he married the mother after the birth and agreed either to have his name on the birth certificate or to support the child, or he welcomed the child into his home and openly held the child out as his own.

In some states, the presumption of paternity is considered conclusive, which means it cannot be disproven, even with contradictory blood tests. In Michael H. v. Gerald D., 491 U.S. 110 (1989), the U.S. Supreme Court upheld California's presumed father statute as a rational method of protecting the integrity of the family against challenges based on the due process rights of the father and the child. A presumed father must pay child support.

Equitable Parent

In Michigan (Atkinson v. Atkinson, 408 N.W.2d 516 (1987)) and Wisconsin (In re Paternity of D.L.H., 419 N.W.2d 283 (1987)), a spouse who is not a legal parent (biological or adoptive) may be granted custody or visitation under the notion of equitable parent.
Courts apply this concept when a spouse and child have a close relationship and consider themselves parent and child or where the biological parent encouraged this relationship. If the court grants an equitable parent custody or visitation, then the parent will also be required to pay child support.

  the judge continues to separate my two children. Thats tearing apart my kids and their sibling bond!