¶1 dissenting. The majority opinion needlessly bastardizes the child in question by affirming a judgment predicated upon the express factual finding of the trial court that “the older child, although conceived and born during the course of the marriage, is not the biological child of the defendant.”
¶2 Defendant stipulated he is not the father of this child. If he is not, he should not be awarded custody, and the trial court has no jurisdiction to grant him custody in this proceeding. The defendant is only a stepfather to the child if the trial court be correct. For this reason, all three assignments of error are well-taken.
¶3 This does not mean, however, that the child in question need be needlessly bastardized. Rather, there is nothing properly in this record to support a finding that the child was not born of the marriage of the parties. As the majority notes, a child conceived and born during wedlock is strongly presumed to be issue of the marriage. While this presumption is rebuttable, under common law, it could be properly rebutted only by clear and convincing evidence that it is impossible that the mother’s husband is also the father of the child, usually requiring clear evidence of non-access. A stipulation by the parties (especially one under such duress as defendant utilized against plaintiff) that the husband is not the father of the child cannot serve as the necessary clear and convincing evidence. If such a stipulation is to be accepted, it must at the very least be deemed to stipulate impossibility and to rebut the presumption. To this extent, I agree with the majority. However, the trial court not only accepted the stipulation but utilized it as a basis for expressly finding defendant not to be the father and, instead, only that the parties are “parents” and entitled to consideration as parents whatever that may mean.
¶4 The only appropriate finding in this case upon the evidence adduced is that defendant is the natural, as well as the presumed, father of the child. I cannot join in the affirmance of a judgment, the effect of which permanently stigmatizes this child as illegitimate and places his legal relationship with defendant under a nebulous cloud while awarding defendant, despite his formal rejection and disac-knowledgment of parentage of the child, with custody and rights the same as a parent, rather than only those of a stepparent. Under present law, effective after the trial court’s judgment, a procedure is provided in R.C. Chapter 3111 for determining paternity, although defendant would be presumed to be the natural father by R.C. 3111.03(A)(1).
¶5 If defendant wishes to prove he is not the father of the child, he should be afforded an opportunity to do so in an appropriate proceedings within the limitations of admissible evidence as to impossibility, not just evidence that someone else could be the father assuming such evidence to exist. Defendant, however, initially raised the issue by affidavit claiming it was impossible for him to be the father of the child. If that be true, he is only a stepfather to the child and has only the rights of a stepfather.
¶6 Contrary to the implication in the majority opinion, the trial court expressly found that defendant is not the father of the child. That finding is inconsistent with the other findings since defendant then would be only a stepfather, a type of “parent” but not one whose right to *41 custody is equal to that of the mother. Under the finding of the trial court, the child would not be issue of defendant and would not be entitled to the legal rights of a child, only that as a former stepchild — a child of a woman to whom defendant was previously married. Awarding defendant custody does not change the legal relationship as found by the trial court. If defendant wishes to challenge paternity, he necessarily gives up the right to consideration for custody.
¶7 Accordingly, I would sustain the assignments of error and reverse the judgment insofar as it determines parentage of the child and awards custody to defendant and remand the cause for a new trial upon the issue of parentage and custody of the child.