Family Law Corner: Who's Your Daddy?
Since the news broke about Baby Kimye (the unborn child of Kim Kardashian and Kanye West), gossip websites like TMZ have been reporting that under California law, Kim’s estranged husband Kris Humphries is the presumed father. Headlines like “Kris Humphries—And the Presumption is…He’s the Daddy!” suggest that because Kim and Kris are still married, Kris will be the legal father to Baby Kimye. In reality, a legal presumption of paternity only applies if Kim is still married to Kris when Baby Kimye is born, or Baby Kimye is born within 300 days after the marriage is terminated by death, annulment, invalidity, or divorce (Family Code Section 7611(a). This seems likely: Baby Kimye is due in June of this year, and Kim and Kris’ annulment trial has not even been calendared—trial setting is scheduled for February 15, 2013.
However, assuming they are still married, Kris will not be the “conclusive” presumed father under Family Code Section 7540, which requires the parties to not only be married but also cohabitating at the time of the child’s birth. Under Family Code Section 7611(a), however, there would be a “rebuttable” presumption that Kris is the legal father of Baby Kimye, assuming Kanye takes no action to make himself the father, such as being named the father on the birth certificate and/or signing a voluntary declaration of paternity. This seems unlikely.
This begs the question: if Kim filed for divorce in October 2011, why are Kim and Kris still married? As Kim’s lawyer stated to a Los Angeles County Superior Court Judge, Kim is "handcuffed to Kris Humphries,” because Kris has reportedly delayed setting a trial for his request for an annulment. In response to Kim’s petition for a divorce back in 2011, Kris requested an annulment based upon fraud. He has reportedly spent all of 2012 propounding discovery, including taking the depositions of Kanye and Kim’s mother, Kris Jenner. If Kris loses the annulment trial, the parties will then have to proceed with a divorce. It is highly likely that Kim and Kris will still be married when Baby Kimye is born—stay tuned!