Kardashian Pregnancy Highlights Big Legal Issue

Jan 10, 2013


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As described in this article, Kardashian is pregnant with Kanye West’s baby (“I ain’t sayin’ she’s a gold digga”, right Kanye?). But the baby was conceived while she was still legally married to NBA semi-star Kris Humphries.  

In California, that means that the law will presume that Humphries is the biological father of the child, even though they all believe and/or know that West is the actual father. 

The law is the same in North Carolina.  In this state, the law presumes that any child born or conceived during the marriage is the biological father of the husband.  This is true regardless of whether the husband and wife are separated when the child is conceived. 

In fact, this is one of the strongest presumptions in North Carolina law and can be very difficult to overcome.  It takes both the cooperation and agreement of all parties and/or some legal wrangling to overcome this presumption.

In my experience, most people are stunned to find out that a child conceived after a separation by someone other than the mother’s husband is legally presumed to be the husband’s child.  Typically both the mother and the husband are shocked.  The biological father can be either upset or ecstatic, depending on his perspective. So, his cooperation may or may not be easy to obtain.

The reason for this law is that the public (often referred to as “the State” in legal writing) has an interest in making sure that there are as few illegitimate children as possible.  The public wants as many children as possible to be legally attached to two parents.  Historically, there was a social stigma to being an “illegitimate” child.  It seems that this stigma has greatly faded with changing social norms. 

However, there is also a strong financial purpose behind the law.  The public (i.e. taxpayers) does not want to financially support children if it can find a father to support the child.  Since every parent in this state has a legal obligation to financially support their children (unfortunately, the law does not and cannot require emotional or actual parenting support), the public tries very hard to find a father for children. 

While new laws enacted in 2012 make it a little bit easier for husbands to fight against this assumption, it remains a very powerful law. 

The bottom line is that married individuals need to be very careful about conceiving children between separation and the entry of a divorce.  Conceiving during this time period creates very serious consequences, usually of the unintended variety. 


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