Overview

    In 2004, the State Legislature passed a Paternity Disestablishment Bill (Assembly Bill 252, now incorporated into the Family Code as §7645, et. seq.) which expands the opportunity to request the court to set aside or vacate a paternity judgment or paternity declaration. This law creates an additional opportunity and time for individuals to challenge a judgment of paternity on the basis of genetic testing when the genetic testing shows that the previously established father is not the biological father. The law includes limitations and safeguards for the protection of the child's best interest. This law became effective January 1, 2006.

    What must a person do to ask the Court to set aside or vacate a paternity judgment pursuant to this new law?
    A Notice of Motion must be filed with the court on Judicial Council Form FL 272 and FL 273. Please note that if paternity of the child or children was established via a Voluntary Declaration of Paternity, the motion must be filed on form FL 280. Please note that this motion has very specific requirements concerning what must be included. Please refer to Family Code §7647 for a listing of these requirements. Attached to this motion must be a "Declaration in Support of a Motion to Set Aside a Judgment of Paternity."
    What is a Declaration In Support of a Motion to Set Aside a Judgment of Paternity?
    It is a written statement signed under penalty of perjury by the requesting party setting out facts and explaining why he or she believes that the previously established father is not the biological father. The statement must include specific factual reasons supporting the contention. By signing this declaration, the requesting party is asking the paternity of the previously established father to be "disestablished." This declaration is attached to a Notice of Motion to Set Aside a Paternity Judgment as a supporting document.
    Must a person have genetic testing results before filing the Notice of Motion?
    No, genetic testing can be conducted after the Notice of Motion is filed with the court. In cases where the Local Child Support Agency (DCSS) is involved and receives the filed motion, the LCSA may issue an administrative order for genetic testing and will arrange the testing appointments.
    Who can request the Court to set aside the judgment of paternity? How much time does one have to file this motion?
    This law applies to three distinct paternity establishment scenarios and there are specific individuals in each scenario that can request the motion to set aside a paternity judgment. There are also different time limitations for each scenario.

    1. Paternity Declaration Cases: Paternity was established by the previously established father's voluntary signature on the Paternity Opportunity Program Declaration (known as a "POP declaration").
      1. Who can make the request?
        1. The mother
        2. The previously established father who signed the POP declaration.
        3. The LCSA (only if a conflict between two POP declarations or a POP declaration and a paternity judgment exists.)
      2. Time limitation to file the motion:
        1. Two years from the date of the child's birth.
    2. Default judgments: The paternity judgment was established based on a default ruling of the court. The alleged father did not participate in the court proceedings.
      1. Who can make the request in this situation?
        1. The mother
        2. The legally established father
        3. The child
        4. The legal representative
        5. The LCSA
      2. Time limitation to File the Motion:
        1. For existing cases prior to January 1, 2005: Within 2 years of enactment of this provision (must have been filed by Jan. 1, 2007).
        2. For all other cases: Two years from (a) when the father knew or should have known of the judgment of paternity; or (b) two years from the date the father knew or should have known of an action to adjudicate the issue of paternity.
    3. Paternity Judgments: The previously established father was determined to be the legal father (without genetic testing having been conducted).
      1. Who can make the request in this situation?
        1. The mother
        2. The legally established father
        3. The child
        4. The legal representative
        5. The LCSA
      2. Time limitation to file motion: The sooner of the following two circumstances -- Two years from (a) when the father knew or should have known of the judgment of paternity; or (b) two years from the date the father knew or should have known of an action to adjudicate the issue of paternity.
    If the genetic tests indicate the legally established father under the order is not the biological father, does the court grant the motion?
    Not necessarily. Even if the genetic tests indicate the legally established father under the order is not the biological father, the court may deny the motion and make the determination that setting aside or vacating the voluntary declaration of paternity or paternity judgment is not in the best interest of the child. The following criteria is used in making this determination.

    1. The age of the child.
    2. The length of time elapsed since paternity was established.
    3. The nature, duration, and quality of relationship with the child, including the duration and frequency of any time periods during which the child enjoyed a parent-child relationship.
    4. A request that the parent-child relationship continue.
    5. A notice from the biological father that he does not oppose the preservation of parent-child relationship between the man who signed the voluntary declaration and the child, or the previously established father and the child.
    6. The benefit or detriment to the child in establishing the biological parentage of the child.
    7. Whether any conduct has impaired the ability: (a) to determine the identity of the biological father, or (b) obtain support from the biological father.
    8. Additional factors the court deems relevant in the determination of the best interest of the child.
    What is the effect of setting aside the paternity judgment?
    If the court vacates or sets aside the judgment of paternity, the court will relieve the obligor of any future payments and all past due arrears. However, there is no right to reimbursement for any of the monies paid previously for support pursuant to the judgment that was set aside.

    What scenarios are not covered under F.C. 7646?
    1. Paternity established within a Marriage by conclusive presumption. F.C. 7540.
    2. Out of state orders
    3. Adoptions, artificial inseminations, and cases involving surrogate parents.
    4. Dissolution judgments
    In which Court should the motion be filed?
    Paternity disestablishment matters are handled in the Family Court of proper venue. This is normally the court where the child support order was originally issued unless it was registered in another county. In that case, proper venue is the county where the order is currently registered.
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