The child custody implications of the Arnold Schwarzenegger extra marital activities has been largely ignored as the news media focuses on the monetary cost of the Schwarzenegger divorce. As a San Diego Certified Family Law Specialist attorney, I've been looking for a report on the custody, child support part of this news story. The Washington Post, in an article published on 5/25/11, is the first article that I've seen that addresses this subject. Namely, that Schwarzenegger allegedly fathered a child outside of his marriage with Mildred Baena, while Mr. Baena, Mildred's ex Husband, states in shock that he thought that he (Mr. Baena) was the father.
The monetary cost of the marriage is a good angle to the story. Reportedly Schwarzenegger earned $400 million during his long term marriage to Maria Shriver. Did Maria Shriver and Schwarzenegger have a premarital contract prior to their marriage? While I haven't seen the answer to this question in any article I believe that if there is a prenuptial contract, it likely was limited to property identification instead of the more aggressive prenup types (for example, waiver of spousal support or limited payment to spouse in the event of a divorce). After all, Schwarzenegger was marrying into the Kennedy family and he might have thought that his assets were irrelevant. If this prediction is correct, Schwarzenegger is about to learn more about California divorce economics.
Back to the custody, and (to some--more importantly) the child support issue, if Ms. Baena was cohabiting with her Husband, Mr. Baena, when the child was born, and Mr. Baena was not impotent or sterile, then Mr. Baena is conclusively presumed to be the father of the child - except as provided in Family Code Section 7541. Family Code Section 7541 states the procedure for challenging paternity, by the presumed father, within the first two years of the child's life. Since this child is more than two years old, Family Code Section 7541 is not available to Mr. Baena. Has there been a judicial finding that Mr. Baena is the father of this child? That may have been done by the California Superior Court in a divorce between Mr. and Ms. Baena.