Cal. Codes » Family Code / DIVISION 12. PARENT AND CHILD RELATIONSHIP / PART 2. PRESUMPTION CONCERNING CHILD OF MARRIAGE AND GENETIC TESTING TO DETERMINE PARENTAGE / CHAPTER 1. Child of Wife Cohabiting With Husband
California Codes

Cal. Family Code § 7540 (2026)

Child of Wife Cohabiting With Husband

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(a)Except as provided in Section 7541, the child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the marriage.

(b)The conclusive marital presumption in subdivision (a) does not apply if the court determines that the husband of the woman who gave birth was impotent or sterile at the time of conception and that the child was not conceived through assisted reproduction.

Notes of Decisions
Cited in 29 cases (9 in the last 5 years), 1999–2024 · leading case: San Bernardino Cnty. Child. & Fam. Servs. v. M.G., 7 Cal. App. 5th 886 (Cal. Ct. App. 2017).
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San Bernardino Cnty. Child. & Fam. Servs. v. M.G., 7 Cal. App. 5th 886 (Cal. Ct. App. 2017). · cites it 3× “’s parent under Family Code section 7540, and that this “defeat[s]” S.”
Heather Martin Gartner v. Iowa Dep't of Pub. Health, 830 N.W.2d 335 (Iowa 2013). · cites it 2× “”); Cal. Fam. Code § 7540 (West 2013) (“[T]he child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”
McBride v. Boughton, 123 Cal. App. 4th 379 (Cal. Ct. App. 2004). “Under the applicable statutory scheme, if a married man fails to request paternity testing within two years of the birth of a child to his wife, and he is neither infertile nor impotent, he will be conclusively presumed to be the child’s father, with all the concomitant…”
Los Angeles Cnty. Dep't of Child. & Fam. Servs. v. E.C., 245 Cal. App. 4th 1277 (Cal. Ct. App. 2016). “(Fam. Code, §§ 7540, 7573, 7611, subds. (a)-(d).”
Plaza Hollister Ltd. P'ship v. Cnty. of San Benito, 72 Cal. App. 4th 1 (Cal. Ct. App. 1999). “) The statutory language of section 80, subdivision (a)(3), plainly creates conclusive presumptions and does not itself bar refund claims or refund actions.”
C.A. v. C.P., 29 Cal. App. 5th 27 (Cal. Ct. App. 2018). “" ( Fam. Code, § 7540.) 2 In turn, section 7541 allows blood tests to be used to rebut the presumption, provided the husband or presumed father moves for testing within two years of the child's birth.”
Brian C. v. Ginger K., 77 Cal. App. 4th 1198 (Cal. Ct. App. 2000). “) As this opinion has taken some space to demonstrate, a conclusion that the statutory conclusive presumption (Fam. Code, § 7540) automatically cuts off a man in Brian’s position from asserting paternity is unconstitutional.”
Los Angeles Cnty. Dep't of Child. & Fam. Servs. v. Martin O., 178 Cal. App. 4th 139 (Cal. Ct. App. 2009). “Code, § 7540 [child of wife cohabiting with husband who is not impotent or sterile conclusively presumed to be child of the marriage]; §§ 7571-7572 [paternity established where man identified by mother as natural father executes voluntary declaration of paternity at hospital…”
Prato-Morrison v. Doe, 103 Cal. App. 4th 222 (Cal. Ct. App. 2002). “(Fam. Code, §§ 7540, 7610, subd. (a), 7611, subd.”
Cnty. of Riverside v. Estabrook, 30 Cal. App. 5th 1144 (Cal. Ct. App. 2019). · cites it 2× “In this case, the mother of the child's husband is holding out that the child as his own under Family Code §§ 7541 and 7611 .”
Larry R. v. Superior Court, No. F082124 (Cal. Ct. App. July 7, 2021). · cites it 5× “(Fam. Code, § 7540.) Therefore, the court should have ordered reunification services for him.”
In re M.R., No. E064621M (Cal. Ct. App. Feb. 9, 2017). · cites it 4× “R’s parent under Family Code section 7540, and that this “defeat[s]” S.”
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