What is the test for establishing paternity in a divorce action?

Considering present-day realities, not every question of paternity raised and decided in a marital dissolution action involves a full adversary hearing on the subject. It is not uncommon for such an issue raised in the pleadings to be decided pro forma because the mother is reticent to be subjected to scrutiny about past dalliances. The emotional experience and psychological trauma of having one's personal life unveiled can act as a deterrent. Guilt feelings over the dissolution, favorable concessions on support or property can influence the vigor with which the paternity question is presented to the court. (See Everett v. Everett (1976) 57 Cal.App.3d 65, 71, 129 Cal.Rptr. 8.) The availability of Aid to Families with Dependent Children (AFDC) may relieve the financial motivation for energetic pursuit of the responsible father. Lastly, the mother may have ambivalent feelings about having the child tied to a past relationship or about having to deal with the father on visitation and support. These considerations would require a review of the record to determine whether the mother acted in a proper representative capacity, and while not requiring a reweighing

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9] We hold that in dealing with the prospective rights of a minor child to establish paternity, the child, if not formally a party, is not bound by a paternity determination in a marital dissolution action. The court is not required to be unaware of the prevalence of nonmarital and extramarital relationships in today's society (Marvin v. Marvin (1976) 18 Cal.3d 660, 683, 134 Cal.Rptr. 815, 557 P.2d 106). To bind the child by the discretion or indiscretion, as the case may be, of the mother in choosing counsel or trial tactics in a divorce action without formal joinder, is to confer upon the mother the right to determine a child's most fundamental right next to life itself.