Filed 3/5/98

CERTIFIED FOR PUBLICATION

[NO CHANGE IN JUDGMENT]

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE COURT:

It is ordered that the opinion filed herein on February 3, 1998, be modified in the following particulars:

1. On page 10, delete the last paragraph which continues to page 11 through line 10 and replace it with the following paragraphs:

Moreover, it may serve no good purpose and may not be in the best interest of the child to create what in essence is a fictional family. Here we have a married couple apparently pretending that a child is their offspring. It is admirable that Karen M.'s husband is willing to raise this child as his own. But it may also be beneficial for this child to have a relationship with her biological father with whom she has blood and genetic ties.

That we are even deciding this case calls into question what familial stability we are preserving. Although Michael M. v. Giovanna F. (1992) 5 Cal.App.4th 1272 is distinguishable, it is instructive here. In Michael M. both the mother and biological father knew that they had conceived a child before the mother's marriage to another man. For that reason the conclusive presumption of paternity did not apply when the child was born during the marriage. The Court of Appeal allowed the biological father's paternity action to proceed. The court stated there was "no tenable basis on which to find a threat to the unity of the family flowing from the biological father's prompt attempt to establish a relationship with the child." (Id., at p. 1284.)

Similarly here, where all the parties know who is the biological father, there is no reason to assume the integrity of the "family" will be in jeopardy if visitation is allowed.

This order modifying opinion does not change the judgment.