Husband appeals the trial court’s determination of child’s parentage and husband’s affirmative obligation of support.
Husband and wife were married February 16, 1974, approximately three weeks prior to the birth of her child on March 3, 1974. Wife’s petition for dissolution filed September 12, 1974 was granted February 23, 1978 by a decree which provided, in part:
There was born as a result of this marriage One (1) child, namely, R. M. S. , age three (3). That the Petitioner is a fit and proper person to have the care and custody of said minor child subject to the reasonable rights and visitations to the Respondent herein.
That the sum of Thirty ($30.00) Dollars per week per child is a reasonable amount of support on said minor child.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT: That the Petitioner shall have care and custody of the parties minor child, namely R. M. S. age three (3), subject to reasonable rights and visitation to the Respondent herein.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT: That the Respondent shall pay to the Petitioner for the support of said minor child, the sum of Thirty ($30.00) Dollars per week per child.
I.
The trial court erred in determining the child was born of the marriage.1
A child born during marriage2 is presumed legitimate. This presumption is not conclusive although it may be rebutted only by direct, clear, and convincing evidence. Duke v. Duke, (1962) 134 Ind.App. 172, 185 N.E.2d 478. Uncontroverted evidence of non-access by husband at the time of conception will meet this high standard. Pilgrim v. Pilgrim, (1947) 118 Ind.App. 6, 75 N.E.2d 159.
We have such non-con tro ver ted evidence before us. At trial wife admitted husband was not the biological father of the child. In fact, husband and wife did not meet until Christmas 1973, at which time wife was visibly pregnant.
II.
Some jurisdictions take the position in a dissolution of marriage the duty of continued child support falls upon only a biological or adoptive parent. Other jurisdictions, without statutory authorization, have used a myriad of rationales to extend the duty of support to a wife’s illegitimate child upon the termination of the marriage.
*321. Equitable adoption.
A man, marrying a woman he knows is pregnant, is held to adopt the child at birth and is held liable for its support as one standing in loco parentis. This principle was stated in Miller v. Anderson, (1885) 43 Ohio St. 473, 3 N.E. 605, 608:
If another man, not the father of the unborn child, elects to stand in loco par-entis to the child, the law will esteem such man as the father. That one who marries a woman that he knows to be enciente is regarded in law as adopting the child into the family at its birth. That he could not expect the mother to discard it, or abandon it at its birth, or refuse it nurture or maintenance, and that the child, so receiving nurture and support, must necessarily become one of the family of the wife, which would also be of the family of the husband. That this understanding must necessarily enter into the marriage contract of the husband and wife; and when this relation is established, the law raises a conclusive presumption that the husband is the father of such child.
* * * And this rule, as announced, is established upon obvious principles of public policy and decency. This child was born in 1865. The husband had prior thereto condoned the wife’s offense, and, by taking her in marriage with full knowledge of her condition, adopted her child on its birth into his family, and, even if he was not its natural father, consented to stand in law as such, with all the rights and responsibilities of a father in fact.
See, Gusten v. Gusten, 108 Ohio App. 171, 161 N.E.2d 68.
2. Equitable estoppel.
A man who makes an express or implied misrepresentation of fact (fatherhood) to the child inducing the child to alter his position to his prejudice remains liable for child’s support upon termination of marriage.
This concept was thoroughly discussed in Clevenger v. Clevenger, (1961) 189 Cal.App.2d 658, 11 Cal.Rptr. 707, 714-715, 90 A.L.R.2d 569, 579-580.
If the facts should show, however, that the husband represented to the boy that he was his father, that the husband intended that his representation be accepted and acted upon by the child, that the child relied upon the representation and treated the husband as his father and gave his love and affection to him, that the child was ignorant of the true facts, we would have the foundation of the elements of estoppel (citations omitted).
Breaking down the factors involved here, the benefits to the husband in such instance would be (1) the bestowal upon him of the love and affection of the child as a natural child, based upon the representation that the husband was the natural father, (2) the substitution of the husband in the status of father in the place of the natural father, so that the putative father would have the possession and custody of the child instead of the natural father, and the right to the child’s earnings, (3) the community’s recognition of the husband as a father, a status from which appellant undoubtedly derived prestige and fulfillment.
The husband’s representation that he was his natural father would cause these consequences and detriments to the child:
(1) It would deprive the child of the potential action of the mother, as his guardian, at the time of the child’s birth, to hold the natural father liable for the support of the child. The child thus relies upon the husband’s representation and does not attempt to find the natural father. As of the present date it is realistically impossible to do so. This reliance works a definite detriment to the child.
(2) It would induce the child to accept the husband as his natural father and render to him the affection and love of a son, with the son’s reasonable expectation of care, support and education until adulthood. The reversal of this representation, through the publication of the illegitimacy of the child, inflicts deep injury upon him. To be designated as an illegitimate child in preadolescence is an emo*33tional trauma of lasting consequence. Having placed the cloak of legitimacy upon the child, having induced the child to rely upon its protection, the husband by abruptly removing it surely harms the child. The child has therefore relied on the conduct of the husband to his injury.
(S) It would induce the child to hold himself out to the community as the natural son of the husband, one of the benefits which the appellant apparently desired, only to suffer the abrupt removal of that status, and to undergo the subsequent social injury.
These are the elements of estoppel, and that they would, if established, apply here in unusual circumstances, does not make them the less appropriate. If we sanction them in dealing with property in commercial transactions, we do not discard them in dealing with a child and an asserted father involved in a deep-rooted human relationship.
3. Loco parentis.
An obligation of continued support is imposed if circumstances other than marriage of husband and natural mother indicate husband’s assumption of the position of loco parentis and husband’s intent that the position continue after termination of the marital relationship.
In Fuller v. Fuller, (D.C.App.1968) 247 A.2d 767, 770, first defined the term loco parentis:
[It] refers to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.
Niewiadomski v. U. S., (6th Cir. 1947) 159 F.2d 683, 686, cert. denied, 331 U.S. 850, 67 S.Ct. 1730, 91 L.Ed. 1859.
Thus, the continuation of the relationship of loco parentis is a matter which lies within the will of the husband and it may be abrogated by him at any time. One such time is upon the dissolution of marriage unless husband intends the relationship to continue.
4. Contract to support or adopt child.
This theory was discussed in Clevenger v. Clevenger, supra.
On the other hand, we see no theoretical reason why a contract for the support of an illegitimate child during its minority between the mother and the mother’s husband would not be enforceable. The husband receives as consideration the custody and control of the child as well as the right to its earnings.
[T]he promise by the putative father to support the child would fall within the sanction of section 90 of the Restatement of the Law of Contracts, declaring: “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”
The prerequisite to any such consensual obligation is, of course, the consummation of an express agreement and its partial performance.
Looking to Indiana precedent, this Court has said a support order against a husband who is not the child’s father
would have been improper. The statute providing that the court shall make an order for custody and support refers only to the children of the marriage. § 3-1219, Burns’ 1933.3
Pilgrim v. Pilgrim, (1947) 118 Ind.App. 6, 75 N.E.2d 159. The Dissolution of Marriage Act, effective September 1, 1973, effected no change. IC 31—1-11.5-2(c) reads:
*34The term ‘child’ means a child or children of both parties to the marriage and includes children born out of wedlock to such parties as well as children born or adopted during the marriage of such parties. (emphasis added)
A child must be the child of both parties to the marriage to fall within the clear meaning of the statute. This is true whether the child is born or adopted during the marriage of the parties or born out of wedlock to such parties. In either circumstance it must be the child of both parties.
This child is not. Although it was born to wife during her marriage to husband, it was not fathered by husband. Of course had husband sired the child, the child would have fallen within the definition of child provided by IC 31-l-11.5-2(c) regardless of whether she was born before the marriage, and hence born out of wedlock to the parties, or conceived before marriage but born after marriage, or conceived and born during marriage, or conceived during marriage but born after a dissolution of the marriage.4
We believe this position not only expresses the provisions of the statute, but also the legislative intent.
Section 104(c) of the Proposed Dissolution of Marriage Act prepared by the Subcommittee on Dissolution of Marriage of the Civil Code Study Commission reads:
(c) The term ‘child’ means a child or children of both parties to the marriage and includes children born out of wedlock to such parties as well as children born during the marriage of such parties.
This subsection was enacted by the General Assembly with an amendment that is of no consequence to this case.5
In the comments to Section 104(c), the Subcommittee stated:
. For the purposes of this Act all children born of the parties to the marriage are included. Thus an illegitimate child may obtain support, under this Act, if his father subsequently marries his mother, (emphasis added)
Thus it appears our statute resolves the issue presented against wife and, without benefit of an appellee’s brief, we are not in a position to consider the wisdom or application of any expansion of that statute.
We understand the dissent would place the duty to support on husband because he “acknowledged” the child. However, we do not find Small v. State, (1948) 226 Ind. 38, 77 N.E.2d 578, cited by the dissent persuasive.
First, the Supreme Court in its Small decision specifically acknowledged that legal parentage had been previously determined in a divorce action between the defendant Small and his former wife. Furthermore, the Small court was influenced by a probate statute, enacted in 1831, reenacted in 1843 and 1852 and repealed in 1954,6 that provided:
If a man shall marry the mother of an illegitimate child, and acknowledge it as his own, such child shall be deemed legitimate.
Under that statute, for inheritance purposes, a man became the father of the child, whether or not he was the biological father, by the act of marriage and acknowledgment, and the child was legitimized.
The present probate statute,7 for inheritance purposes, requires that paternity be established by law during the father’s lifetime or the marriage of the putative father to the mother of the child, and acknowledgment of the child as his own. However, such a child remains illegitimate.8
Thus Small does not present authority for the effect of our present law concerning *35inheritance by an illegitimate child, vis a vis the duty of support upon the termination of a marriage. We do observe the present probate statute, like the former, does not require proof of actual fatherhood, but only marriage between the mother and putative father and acknowledgment of the child by the putative father as his own. However, the evidence in this case does not raise an issue of “probate” acknowledgment such that its effect on the support duty can be reached.
We have examined the record and must comment on the evidence cited by the dissent as supporting acknowledgment by husband. Fatherhood, biological or otherwise, is simply not a condition to claiming a child for income tax purposes. In a joint return the wife’s illegitimate child may be claimed as an exemption without the husband acknowledging the child as his. The record further does not support the dissent’s statement husband “promised to care for her child.” Indeed, that statement, were it made, rather than being an acknowledgment, is a denial of fatherhood. Otherwise, the record reflects no evidence of acknowledgment of the child as his.
Cause reversed and remanded with instructions to vacate the determination of husband’s paternity and his obligation to support the child.
SULLIVAN, J., concurs. BUCHANAN, C. J., dissents, with opinion.. But see A. B. v. C. D. , (1971) 150 Ind.App. 535, 277 N.E.2d 599 where this Court stated:
The finding that the child “was born as the issue of this marriage” amounts to no more than a finding that he was born to the wife during the marriage . . .. 150 Ind.App. 535. 560. 277 N.E.2d 599. 616.
. We prefer the term “marriage” as opposed to “wedlock” because the latter has been held to refer to “. . . the status of the parents of the child in relation to each other.” Pursley v. Hisch, (1949) 119 Ind.App. 232, 235-236, 85 N.E.2d 270, 271. Thus a child born to a married woman but not fathered by her husband is a child born out of wedlock.
. Acts of 1873, ch. 43, § 21, p. 107, as found in § 3-1219, Bums’ 1933 read:
The court in decreeing a divorce shall make provision for the guardianship, custody, support, and education of the minor children of such marriage.
. L. F. R. v. R. A. R„ (1978) Ind., 378 N.E.2d 855.
. The phrase “or adopted” was inserted following the phrase “as well as children bom.”
. 1 R.S.1852, Ch. 27, § 9 (formerly Ind.Ann. Stat. § 6-2310 (Burns 1933).
. IC 29-l-2-7(b) (Bums Code Ed. 1972).
. A. B. v. C. D., (1971) 150 Ind.App. 535, 277 N.E.2d 599.