Paternity Case Package - Establishment of Paternity
This summary is not intended to be an all
inclusive discussion of the law applicable to an action to establish Paternity
in the State of California, but does include basic and other provisions.
What is an action for "Paternity or Parentage"? An action filed under the
Uniform Parentage Act is called a "paternity" case. The goal of a
paternity case is to establish whether a person is or is not a natural
parent of a child and, if parentage is established, to determine how the
child will be parented and who should help pay for the support of the child.
When may an action for Paternity be brought in California under the Uniform Parentage Act?
If
any of the children was conceived in California or any of the presumed
or alleged fathers reside in California then you may proceed under the
UPA and all proceedings take place in the California courts.
Where may an action
for Paternity be filed in the State of California? An action brought
under the California Uniform Parentage Act may be brought in the county
in which the child resides, the mother resides, or the alleged father resides
or is found or, if the father is deceased, in which proceedings for probate
of his estate have been or could be commenced.
Who may bring an action
or parentage? A child, or guardian ad litem of the child, the child's
natural mother, whether married or unmarried at the time the child was
conceived, or her personal representative or parent if the mother has died;
or a man alleged or alleging himself to be the natural father, or his personal
representative or parent if the father has died; or a presumed father as
defined in the Act, or his personal representative or parent if the presumed
father has died; or the child support enforcement agency, may bring an
action for the purpose of declaring the existence or nonexistence of the
father and child relationship.
Who represents the
interests of the child(ren)? The child may, if under the age
of 12 years, and shall if 12 years of age or older, be made a party to
the action. The child shall be represented by a guardian ad litem
appointed by the court. The guardian ad litem need not be represented by
counsel if the guardian ad litem is a relative of the child.
Are there time limits
to the filing of an action to establish parentage?
a. A child, the child's natural mother, or a man presumed to be the child's father may
bring an action as follows:
(1) At any time for the purpose of declaring the existence
of the father and child relationship presumed under Section 7611.
(2) For the purpose of declaring the nonexistence of the father
and child relationship presumed under subdivision Section 7611 only if
the action is brought within a reasonable time after obtaining knowledge
of relevant facts.
b. Any interested party may bring an action at any time for the
purpose of determining the existence or nonexistence of the father and
child relationship presumed under subdivision (d) of Section 7611.
c. An action to determine the existence of the father and
child relationship with respect to a child who has no presumed father under
Section 7611 or whose presumed father is deceased may be brought by the
child or personal representative of the child, the Department of Child
Support Services, the mother or the personal representative or a parent
of the mother if the mother has died or is a minor, a man alleged or alleging
himself to be the father, or the personal representative or a parent of
the alleged father if the alleged father has died or is a minor.
d. A man not a presumed father may bring an action for the
purpose of declaring that he is the natural father of a child having a
presumed father under Section 7611, if the mother relinquishes for, consents
to, or proposes to relinquish for or consent to, the adoption of the child.
An action under this section shall be brought within 30 days after (1)
the man is served as prescribed in Section 7666 with a notice that he is
or could be the father of the child or (2) the birth of the child, whichever
is later.
What are the jurisdictional
prerequisites to filing an action for parentage in the California courts?
The
jurisdiction of the California Family Court is very broad. Basically,
A person who resides in the State of California or has sexual intercourse
in the State of California thereby submits to the jurisdiction of the courts
of the State of California as to an action for paternity brought under
this chapter with respect to a child who may have been conceived
by that act of intercourse.
Under what circumstances
are certain individuals "presumed" to be the father of the minor child(ren)?
With the following exceptions, the child of a wife cohabiting with her
husband, who is not impotent or sterile, is conclusively presumed to be
a child of the marriage, except:
(a) If the court finds that the conclusions of all the experts,
as disclosed by the evidence based on blood tests performed pursuant to
the Uniform Act on Blood Tests to Determine Paternity (Section 7550), are
that the husband is not the father of the child, the question of paternity
of the husband shall be resolved accordingly.
(b) The notice of motion for blood tests under this section may
be filed not later than two years from the child's date of birth by the
husband, or for the purposes of establishing paternity by the presumed
father or the child through or by the child's guardian ad litem.
(c) The notice of motion for blood tests under this section may
be filed by the mother of the child not later than two years from the child's
date of birth if the child's biological father has filed an affidavit with
the court acknowledging paternity of the child.
(d) The notice of motion for blood tests pursuant to this section
shall be supported by a declaration under oath submitted by the moving
party stating the factual basis for placing the issue of paternity before
the court.
If an action to determine
parentage is filed, can the Petitioner and custodial parent receive court
ordered support prior to the actual determination of parentage? Yes,
in all contested paternity actions where a presumption of paternity as
defined in sections 7611 through 7614 exists, upon motion by a party, the
court may order temporary support for the child pending a judicial determination
of parentage.
Will the parties be
required to submit to genetic testing? The court may, and upon
request of a party, shall, require the child, mother, or alleged father
to submit to genetic tests, including blood tests. If the requesting party
is the mother or the alleged father, the court shall require that the request
be made pursuant to a sworn statement. The sworn statement made by the
party must either: (1) Allege paternity setting forth facts establishing
a reasonable possibility of the requisite sexual contact between the parties;
or (2) Deny paternity setting forth facts establishing a reasonable possibility
of the non-existence of sexual contact between the parties.
Who performs the genetic
tests? The laboratory performing the testing shall be one approved
by an accreditation body designated by the United States Secretary of Health
and Human Services.
If a man is determined
to be the father of the child(ren), is he obligated to support the child?
He
would then have the same duty to support the minor child as he would and
child he fathered where the issue of parentage was not raised.
If an action to determine
parentage is filed and it is determined that a certain individual is the
father of the minor child(ren) and that determination contradicts the child's
birth certificate will the birth certificate be changed? Yes, upon
the order of a court in California, or any other state, a new birth certificate
will be issued reflecting the father as established in the court order.
Can this procedure
be used to establish the mother - child relationship? Yes, any
interested party may bring an action to determine the existence or nonexistence
of a mother and child relationship.
Procedures:
The process for determining
parentage in the State of California begins with the filing of the Petition.
The Respondent is then served with a copy of the Petition and a Summons.
The Summons informs the Respondent of the action and informs the
Respondent of their duty to respond to the action.
Generally, the Court
will order a Pretrial Hearing after service of process. This Pretrial
Hearing is generally informal and the public is barred. the judge conducting
the hearing will evaluate the probability of determining the existence
or nonexistence of the father and child relationship in a trial and whether
a judicial declaration of the relationship would be in the best interest
of the child. On the basis of the evaluation, an appropriate recommendation
for settlement shall be made to the parties, which may include any of the
following: (1) That the action be dismissed with or without prejudice;
(2) That the matter be compromised by an agreement among the alleged father,
the mother, and the child; (3) That the alleged father voluntarily acknowledge
his paternity of the child.
If a party refuses to
accept one of the above recommendations and genetic tests, including blood
tests have not been taken, the court shall require the parties to submit
to genetic tests, if practicable. Thereafter the judge shall make an appropriate
final recommendation. If a party refuses to accept the final recommendation,
the action shall be set for trial.
Statutes:
California Family Code
DIVISION 12. PARENT AND CHILD RELATIONSHIP
PART 2. PRESUMPTION CONCERNING CHILD OF MARRIAGE
AND BLOOD TESTS TO DETERMINE PATERNITY
CHAPTER 1. CHILD OF WIFE COHABITING WITH HUSBAND
§7540:
Except as provided in Section 7541, the child of a wife cohabiting
with her husband, who is not impotent or sterile, is conclusively presumed
to be a child of the marriage.
7541:
(a) Notwithstanding Section 7540, if the court finds that
the conclusions of all the experts, as disclosed by the evidence based
on blood tests performed pursuant to Chapter 2 (commencing with Section
7550), are that the husband is not the father of the child, the question
of paternity of the husband shall be resolved accordingly.
(b) The notice of motion for blood tests under this section may
be filed not later than two years from the child's date of birth by the
husband, or for the purposes of establishing paternity by the presumed
father or the child through or by the child's guardian ad litem.
As used in this subdivision, "presumed father" has the meaning given in
Sections 7611 and 7612.
(c) The notice of motion for blood tests under this section may
be filed by the mother of the child not later than two years from the child's
date of birth if the child's biological father has filed an affidavit with
the court acknowledging paternity of the child.
(d) The notice of motion for blood tests pursuant to this section
shall be supported by a declaration under oath submitted by the moving
party stating the factual basis for placing the issue of paternity before
the court.
(e) Subdivision (a) does not apply, and blood tests may not be
used to challenge paternity, in any of the following cases:
(1) A case that reached final judgment of paternity on
or before September 30, 1980.
(2) A case coming within Section 7613.
(3) A case in which the wife, with the consent of the husband,
conceived by means of a surgical procedure.
CHAPTER 2. BLOOD TESTS TO DETERMINE PATERNITY
7550:
This chapter may be cited as the Uniform Act on Blood Tests to
Determine Paternity.
7551:
In a civil action or proceeding in which paternity is a relevant
fact, the court may upon its own initiative or upon suggestion made by
or on behalf of any person who is involved, and shall upon motion of any
party to the action or proceeding made at a time so as not to delay the
proceedings unduly, order the mother, child, and alleged father to submit
to genetic tests. If a party refuses to submit to the tests, the
court may resolve the question of paternity against that party or enforce
its order if the rights of others and the interests of justice so require.
A party's refusal to submit to the tests is admissible in evidence in any
proceeding to determine paternity. For the purposes of this chapter,
"genetic tests" means any genetic test that is generally acknowledged as
reliable by accreditation bodies designated by the United States Secretary
of Health and Human Services.
7551.5:
All hospitals, local child support agencies, welfare offices, and
family courts shall facilitate genetic tests for purposes of enforcement
of this chapter. This may include having a health care professional
available for purposes of extracting samples to be used for genetic testing.
7552:
The genetic tests shall be performed by a laboratory approved by
any accreditation body that has been approved by the United States Secretary
of Health and Human Services. Any party or person at whose suggestion
the tests have been ordered may demand that other experts, qualified as
examiners of blood types, perform independent tests under order of the
court, the results of which may be offered in evidence. The number
and qualifications of these experts shall be determined by the court.
7552.5:
(a) A copy of the results of all genetic tests performed
under Section 7552 or 7558 shall be served upon all parties, by any method
of service authorized under Chapter 5 (commencing with Section 1010) of
Title 14 of Part 2 of the Code of Civil Procedure except personal service,
no later than 20 days prior to any hearing in which the genetic test results
may be admitted into evidence. The genetic test results shall be
accompanied by a declaration under penalty of perjury of the custodian
of records or other qualified employee of the laboratory that conducted
the genetic tests, stating in substance each of the following:
(1) The declarant is the duly authorized custodian of the
records or other qualified employee of the laboratory, and has authority
to certify the records.
(2) A statement which establishes in detail the chain of custody
of all genetic samples collected, including the date on which the genetic
sample was collected, the identity of each person from whom a genetic sample
was collected, the identity of the person who performed or witnessed the
collecting of the genetic samples and packaged them for transmission to
the laboratory, the date on which the genetic samples were received by
the laboratory, the identity of the person who unpacked the samples and
forwarded them to the person who performed the laboratory analysis of the
genetic sample, and the identification and qualifications of all persons
who performed the laboratory analysis and published the results.
(3) A statement which establishes that the procedures used by the
laboratory to conduct the tests for which the test results are attached
are used in the laboratory's ordinary course of business to ensure accuracy
and proper identification of genetic samples.
(4) The genetic test results were prepared at or near the time
of completion of the genetic tests by personnel of the business qualified
to perform genetic tests in the ordinary course of business.
(b) The genetic test results shall be admitted into evidence at the
hearing or trial to establish paternity, without the need for foundation
testimony of authenticity and accuracy, unless a written objection to the
genetic test results is filed with the court and served on all other parties,
by any party no later than five days prior to the hearing or trial where
paternity is at issue.
(c) If a written objection is filed with the court and served on
all parties within the time specified in subdivision (b), experts appointed
by the court shall be called by the court as witnesses to testify to their
findings and are subject to cross-examination by the parties.
(d) If a genetic test reflects a paternity index of 100 or greater,
the copy of the results mailed under subdivision (a) shall be accompanied
with a voluntary declaration of paternity form, information prepared according
to Section 7572.
7553:
The compensation of each expert witness appointed by the court
shall be fixed at a reasonable amount. It shall be paid as the court
shall order. The court may order that it be paid by the parties in
the proportions and at the times the court prescribes, or that the proportion
of any party be paid by the county, and that, after payment by the parties
or the county or both, all or part or none of it be taxed as costs in the
action or proceeding.
7554:
(a) If the court finds that the conclusions of all the
experts, as disclosed by the evidence based upon the tests, are that the
alleged father is not the father of the child, the question of paternity
shall be resolved accordingly.
(b) If the experts disagree in their findings or conclusions, or
if the tests show the probability of the alleged father's paternity, the
question, subject to Section 352 of the Evidence Code, shall be submitted
upon all the evidence, including evidence based upon the tests.
7555:
(a) There is a rebuttable presumption, affecting the burden
of proof, of paternity, if the court finds that the paternity index, as
calculated by the experts qualified as examiners of genetic markers, is
100 or greater. This presumption may be rebutted by a preponderance
of the evidence.
(b) As used in this section:
(1) "Genetic markers" mean separate genes or complexes
of genes identified as a result of genetic tests.
(2) "Paternity index" means the commonly accepted indicator used
for denoting the existence of paternity. It expresses the relative
strength of the test results for and against paternity. The paternity
index, computed using results of various paternity tests following accepted
statistical principles, shall be in accordance with the method of expression
accepted at the International Conference on Parentage Testing at Airlie
House, Virginia, May 1982, sponsored by the American Association of Blood
Banks.
7556:
This part applies to criminal actions subject to the following
limitations and provisions:
(a) An order for the tests shall be made only upon application
of a party or on the court's initiative.
(b) The compensation of the experts shall be paid by the county
under order of court.
(c) The court may direct a verdict of acquittal upon the conclusions
of all the experts under Section 7554; otherwise, the case shall be submitted
for determination upon all the evidence.
7557:
Nothing in this part prevents a party to an action or proceeding
from producing other expert evidence on the matter covered by this part;
but, where other expert witnesses are called by a party to the action or
proceeding, their fees shall be paid by the party calling them and only
ordinary witness fees shall be taxed as costs in the action or proceeding.
7558:
(a) This section applies only to cases where support enforcement
services are being provided by the local child support agency pursuant
to Section 17400.
(b) In any civil action or proceeding in which paternity is a relevant
fact, and in which the issue of paternity is contested, the local child
support agency may issue an administrative order requiring the mother,
child, and the alleged father to submit to genetic testing if any of the
following conditions exist:
(1) The person alleging paternity has signed a statement
under penalty of perjury that sets forth facts that establish a reasonable
possibility of the requisite sexual conduct between the mother and the
alleged father.
(2) The person denying paternity has signed a statement under penalty
of perjury that sets forth facts that establish a reasonable possibility
of the nonexistence of the requisite sexual contact between the parties.
(3) The alleged father has filed an answer in the action or proceeding
in which paternity is a relevant fact and has requested that genetic tests
be performed.
(4) The mother and the alleged father agree in writing to submit
to genetic tests.
(c) Notwithstanding subdivision (b), the local child support agency
may not order an individual to submit to genetic tests if the individual
has been found to have good cause for failure to cooperate in the determination
of paternity pursuant to Section 11477 of the Welfare and Institutions
Code.
(d) The local child support agency shall pay the costs of any genetic
tests that are ordered under subdivision (b), subject to the county obtaining
a court order for reimbursement from the alleged father if paternity is
established under Section 7553.
(e) Nothing in this section prohibits any person who has been ordered
by the local child support agency to submit to genetic tests pursuant to
this section from filing a notice of motion with the court in the action
or proceeding in which paternity is a relevant fact seeking relief from
the local child support agency's order to submit to genetic tests.
In that event, the court shall resolve the issue of whether genetic tests
should be ordered as provided in Section 7551. If any person refuses
to submit to the tests after receipt of the administrative order pursuant
to this section and fails to seek relief from the court from the administrative
order either prior to the scheduled tests or within 10 days after the tests
are scheduled, the court may resolve the question of paternity against
that person or enforce the administrative order if the rights of others
or the interest of justice so require. Except as provided in subdivision
(c), a person's refusal to submit to tests ordered by the local child support
agency is admissible in evidence in any proceeding to determine paternity
if a notice of motion is not filed within the timeframes specified in this
subdivision.
(f) If the original test result creates a rebuttable presumption
of paternity under Section 7555 and the result is contested, the local
child support agency shall order an additional test only upon request and
advance payment of the contestant.
CHAPTER 3. ESTABLISHMENT OF PATERNITY BY VOLUNTARY
DECLARATION
7570:
The Legislature hereby finds and declares as follows:
(a) There is a compelling state interest in establishing
paternity for all children. Establishing paternity is the first step
toward a child support award, which, in turn, provides children with equal
rights and access to benefits, including, but not limited to, social security,
health insurance, survivors' benefits, military benefits, and inheritance
rights. Knowledge of family medical history is often necessary for
correct medical diagnosis and treatment.
Additionally, knowing one's father is important to a child's development.
(b) A simple system allowing for establishment of voluntary paternity
will result in a significant increase in the ease of establishing paternity,
a significant increase in paternity establishment, an increase in the number
of children who have greater access to child support and other benefits,
and a significant decrease in the time and money required to establish
paternity due to the removal of the need for a lengthy and expensive court
process to determine and establish paternity and is in the public interest.
7571:
(a) On and after January 1, 1995, upon the event of a live
birth, prior to an unmarried mother leaving any hospital, the person responsible
for registering live births under Section 102405 of the Health and Safety
Code shall provide to the natural mother and shall attempt to provide,
at the place of birth, to the man identified by the natural mother as the
natural father, a voluntary declaration of paternity together with the
written materials described in Section
7572. Staff in the hospital shall witness the signatures
of parents signing a voluntary declaration of paternity and shall forward
the signed declaration to the Department of Child Support Services within
20 days of the date the declaration was signed. A copy of the declaration
shall be made available to each of the attesting parents.
(b) No health care provider shall be subject to any civil, criminal,
or administrative liability for any negligent act or omission relative
to the accuracy of the information provided, or for filing the declaration
with the appropriate state or local agencies.
(c) The local child support agency shall pay the sum of ten dollars
($10) to birthing hospitals and other entities that provide prenatal services
for each completed declaration of paternity that is filed with the Department
of Child Support Services, provided that the local child support agency
and the hospital or other entity providing prenatal services has entered
into a written agreement that specifies the terms an d conditions for the
payment as required by federal law.
(d) If the declaration is not registered by the person responsible
for registering live births at the hospital, it may be completed by the
attesting parents, notarized, and mailed to the Department of Child Support
Services at any time after the child's birth.
(e) Prenatal clinics shall offer prospective parents the opportunity
to sign a voluntary declaration of paternity. In order to be paid
for their services as provided in subdivision (c), prenatal clinics must
ensure that the form is witnessed and forwarded to the Department of Child
Support Services within 20 days of the date the declaration was signed.
(f) Declarations shall be made available without charge at all
local child support agency offices, offices of local registrars of births
and deaths, courts, and county welfare departments within this state.
Staff in these offices shall witness the signatures of parents wishing
to sign a voluntary declaration of paternity and shall be responsible for
forwarding the signed declaration to the Department of Child Support Services
within 20 days of the date the declaration was signed.
(g) The Department of Child Support Services, at its option, may
pay the sum of ten dollars ($10) to local registrars of births and deaths,
county welfare departments, or courts for each completed declaration of
paternity that is witnessed by staff in these offices and filed with the
Department of Child Support Services. In order to receive payment,
the Department of Child Support Services and the entity shall enter into
a written agreement that specifies the terms and conditions for payment
as required by federal law. The Department of Child Support Services
shall study the effect of the ten dollar ($10) payment on obtaining completed
voluntary declaration of paternity forms and shall report to the Legislature
on any recommendations to change the ten dollar ($10) optional payment,
if appropriate, by January 1, 2000.
(h) The Department of Child Support Services and local child support
agencies shall publicize the availability of the declarations. The
local child support agency shall make the declaration, together with the
written materials described in subdivision (a) of Section 7572, available
upon request to any parent and any agency or organization that is required
to offer parents the opportunity to sign a voluntary declaration of paternity.
The local child support agency shall also provide qualified staff to answer
parents' questions regarding the declaration and the process of establishing
paternity.
(i) Copies of the declaration and any rescissions filed with the
Department of Child Support Services shall be made available only to the
parents, the child, the local child support agency, the county welfare
department, the county counsel, the State Department of Health Services,
and the courts.
(j) Publicly funded or licensed health clinics, pediatric offices,
Head Start programs, child care centers, social services providers, prisons,
and schools may offer parents the opportunity to sign a voluntary declaration
of paternity. In order to be paid for their services as provided
in subdivision (c), publicly funded or licensed health clinics, pediatric
offices, Head Start programs, child care centers, social services providers,
prisons, and schools shall ensure that the form is witnessed and forwarded
to the Department of Child Support Services.
(k) Any agency or organization required to offer parents the opportunity
to sign a voluntary declaration of paternity shall also identify parents
who are willing to sign, but were unavailable when the child was born.
The organization shall then contact these parents within 10 days and again
offer the parent the opportunity to sign a voluntary declaration of paternity.
7572:
(a) The Department of Child Support Services, in consultation
with the State Department of Health Services, the California Association
of Hospitals and Health Systems, and other affected health provider organizations,
shall work cooperatively to develop written materials to assist providers
and parents in complying with this chapter. This written material
shall be updated periodically by the Department of Child Support
Services to reflect changes in law, procedures, or public need.
(b) The written materials for parents which shall be attached to
the form specified in Section 7574 and provided to unmarried parents shall
contain the following information:
(1) A signed voluntary declaration of paternity that is
filed with the Department of Child Support Services legally establishes
paternity.
(2) The legal rights and obligations of both parents and the child
that result from the establishment of paternity.
(3) An alleged father's constitutional rights to have the issue
of paternity decided by a court; to notice of any hearing on the issue
of paternity; to have an opportunity to present his case to the court,
including his right to present and cross-examine witnesses; to have an
attorney represent him; and to have an attorney appointed to represent
him if he cannot afford one in a paternity action filed by a local child
support agency.
(4) That by signing the voluntary declaration of paternity, the
father is voluntarily waiving his constitutional rights.
(c) Parents shall also be given oral notice of the rights and responsibilities
specified in subdivision (b). Oral notice may be accomplished through
the use of audio or videotape programs developed by the Department of Child
Support Services to the extent permitted by federal law.
(d) The Department of Child Support Services shall, free of charge,
make available to hospitals, clinics, and other places of birth any and
all informational and training materials for the program under this chapter,
as well as the paternity declaration form. The Department of Child
Support Services shall make training available to every participating hospital,
clinic, local registrar of births and deaths, and other place of birth
no later than June 30,
1999. (e) The Department of Child Support Services may adopt regulations,
including emergency regulations, necessary to implement this chapter.
7573:
Except as provided in Sections 7575, 7576, and 7577, a completed
voluntary declaration of paternity, as described in Section 7574, that
has been filed with the Department of Child Support Services shall establish
the paternity of a child and shall have the same force and effect as a
judgment for paternity issued by a court of competent jurisdiction.
The voluntary declaration of paternity shall be recognized as a basis for
the establishment of an order for child custody, visitation, or child support.
7574:
(a) The voluntary declaration of paternity shall be executed
on a form developed by the Department of Child Support Services in consultation
with the State Department of Health Services, the California Family Support
Council, and child support advocacy groups.
(b) The form described in subdivision (a) shall contain, at a minimum,
the following:
(1) The name and the signature of the mother.
(2) The name and the signature of the father.
(3) The name of the child.
(4) The date of birth of the child.
(5) A statement by the mother that she has read and understands
the written materials described in Section 7572, that the man who has signed
the voluntary declaration of paternity is the only possible father, and
that she consents to the establishment of paternity by signing the voluntary
declaration of paternity.
(6) A statement by the father that he has read and understands
the written materials described in Section 7572, that he understands that
by signing the voluntary declaration of paternity he is waiving his rights
as described in the written materials, that he is the biological father
of the child, and that he consents to the establishment of paternity by
signing the voluntary declaration of paternity.
(7) The name and the signature of the person who witnesses the
signing of the declaration by the mother and the father.
7575:
(a) Either parent may rescind the voluntary declaration
of paternity by filing a rescission form with the Department of Child Support
Services within 60 days of the date of execution of the declaration by
the attesting father or attesting mother, whichever signature is later,
unless a court order for custody, visitation, or child support has been
entered in an action in which the signatory seeking to rescind was a party.
The Department of Child Support Services shall develop a form to be used
by parents to rescind the declaration of paternity and instruction on how
to complete and file the rescission with the Department of Child Support
Services. The form shall include a declaration under penalty of perjury
completed by the person filing the rescission form that certifies that
a copy of the rescission form was sent by any form of mail requiring a
return receipt to the other person who signed the voluntary declaration
of paternity. A copy of the return receipt shall be attached to the
rescission form when filed with the Department of Child Support Services.
The form and instructions shall be written in simple, easy to understand
language and shall be made available at the local family support office
and the office of local registrar of births and deaths. The department
shall, upon written request, provide to a court or commissioner a copy
of any rescission form filed with the department that is relevant to proceedings
before the court or commissioner.
(b)
(1) Notwithstanding Section 7573, if the court finds that
the conclusions of all of the experts based upon the results of the genetic
tests performed pursuant to Chapter 2 (commencing with Section 7550) are
that the man who signed the voluntary declaration is not the father of
the child, the court may set aside the voluntary declaration of paternity.
(2)
(A) The notice of motion for genetic tests under this section
may be filed not later than two years from the date of the child's birth
by a local child support agency, the mother, the man who signed the voluntary
declaration as the child's father, or in an action to determine the existence
or nonexistence of the father and child relationship pursuant to Section
7630 or in any action to establish an order for child custody, visitation,
or child support based upon the voluntary declaration of paternity.
(B) The local child support agency's authority under this subdivision
is limited to those circumstances where there is a conflict between a voluntary
acknowledgement of paternity and a judgment of paternity or a conflict
between two or more voluntary acknowledgments of paternity.
(3) The notice of motion for genetic tests pursuant to this section
shall be supported by a declaration under oath submitted by the moving
party stating the factual basis for putting the issue of paternity before
the court.
(c)
(1) Nothing in this chapter shall be construed to prejudice
or bar the rights of either parent to file an action or motion to set aside
the voluntary declaration of paternity on any of the grounds described
in, and within the time limits specified in, Section 473 of the Code of
Civil Procedure. If the action or motion to set aside a judgment
is required to be filed within a specified time period under Section 473
of the Code of Civil Procedure, the period within which the action or motion
to set aside the voluntary declaration of paternity must be filed shall
commence on the date that the court makes a finding of paternity based
upon the voluntary declaration of paternity in an action for custody, visitation,
or child support.
(2) The parent or local child support agency seeking to set aside
the voluntary declaration of paternity shall have the burden of proof.
(3) Any order for custody, visitation, or child support shall remain
in effect until the court determines that the voluntary declaration of
paternity should be set aside, subject to the court's power to modify the
orders as otherwise provided by law.
(4) Nothing in this section is intended to restrict a court from
acting as a court of equity.
(5) If the voluntary declaration of paternity is set aside pursuant
to paragraph (1), the court shall order that the mother, child, and alleged
father submit to genetic tests pursuant to Chapter 2 (commencing with Section
7550). If the court finds that the conclusions of all the experts,
as disclosed by the evidence based upon the genetic tests, are that the
person who executed the voluntary declaration of paternity is not the father
of the child, the question of paternity shall be resolved accordingly.
If the person who executed the declaration as the father of the child is
not excluded as a possible father, the question of paternity shall be resolved
as otherwise provided by law. If the person who executed the declaration
of paternity is ultimately determined to be the father of the child, any
child support that accrued under an order based upon the voluntary declaration
of paternity shall remain due and owing.
(6) The Judicial Council shall develop the forms and procedures
necessary to effectuate this subdivision.
7576:
The following provisions shall apply for voluntary declarations
signed on or before December 31, 1996.
(a) Except as provided in subdivision (d), the child of
a woman and a man executing a declaration of paternity under this chapter
is conclusively presumed to be the man's child. The presumption under
this section has the same force and effect as the presumption under Section
7540.
(b) A voluntary declaration of paternity shall be recognized as
the basis for the establishment of an order for child custody or support.
(c) In any action to rebut the presumption created by this section,
a voluntary declaration of paternity shall be admissible as evidence to
determine paternity of the child named in the voluntary declaration of
paternity.
(d) The presumption established by this chapter may be rebutted
by any person by requesting blood or genetic tests pursuant to Chapter
2 (commencing with Section 7550). The notice of motion for blood
or genetic tests pursuant to this section shall be supported by a declaration
under oath submitted by the moving party stating the factual basis for
placing the issue of paternity before the court.
The notice of motion for blood tests shall be made within three
years from the date of execution of the declaration by the attesting father,
or by the attesting mother, whichever signature is later.
The two-year statute of limitations specified in subdivision (b)
of Section 7541 is inapplicable for purposes of this section.
(e) A presumption under this chapter shall override all statutory
presumptions of paternity except a presumption arising under Section 7540
or 7555.
7577:
(a) Notwithstanding Section 7573, a voluntary declaration
of paternity that is signed by a minor parent or minor parents shall not
establish paternity until 60 days after both parents have reached the age
of 18 years or are emancipated, whichever first occurs.
(b) A parent who signs a voluntary declaration of paternity when
he or she is a minor may rescind the voluntary declaration of paternity
at any time up to 60 days after the parent reaches the age of 18 or becomes
emancipated whichever first occurs.
(c) A voluntary declaration of paternity signed by a minor creates
a rebuttable presumption of paternity until the date that it establishes
paternity as specified in subdivision (a).
(d) A voluntary declaration of paternity signed by a minor shall
be admissible as evidence in any civil action to establish paternity of
the minor named in the voluntary declaration.
(e) A voluntary declaration of paternity that is signed by a minor
shall not be admissible as evidence in a criminal prosecution for violation
of Section 261.5 of the Penal Code.
PART 3. UNIFORM PARENTAGE ACT
CHAPTER 1. GENERAL PROVISIONS
7600:
This part may be cited as the Uniform Parentage Act.
7601:
"Parent and child relationship" as used in this part means the
legal relationship existing between a child and the child's natural or
adoptive parents incident to which the law confers or imposes rights, privileges,
duties, and obligations. The term includes the mother and child relationship
and the father and child relationship.
7602:
The parent and child relationship extends equally to every child
and to every parent, regardless of the marital status of the parents.
7603:
Section 3140 is applicable to proceedings pursuant to this part.
7604:
A court may order pendente lite relief consisting of a custody
or visitation order pursuant to Part 2 (commencing with Section 3020) of
Division 8, if the court finds both of the following:
(a) Based on the tests authorized by Section 7541, a parent
and child relationship exists pursuant to Section 7540.
(b) The custody or visitation order would be in the best interest
of the child.
7604.5:
Notwithstanding any other provision of law, bills for pregnancy,
childbirth, and genetic testing shall be admissible as evidence without
third-party foundation testimony and shall constitute prima facie evidence
of costs incurred for those services.
CHAPTER 2. ESTABLISHING PARENT AND CHILD RELATIONSHIP
7610:
The parent and child relationship may be established as follows:
(a) Between a child and the natural mother, it may be established
by proof of her having given birth to the child, or under this part.
(b) Between a child and the natural father, it may be established
under this part.
(c) Between a child and an adoptive parent, it may be established
by proof of adoption.
7611:
A man is presumed to be the natural father of a child if he meets
the conditions provided in Chapter 1 (commencing with Section 7540) or
Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following
subdivisions:
(a) He and the child's natural mother are or have been
married to each other and the child is born during the marriage, or within
300 days after the marriage is terminated by death, annulment, declaration
of invalidity, or divorce, or after a judgment of separation is entered
by a court.
(b) Before the child's birth, he and the child's natural mother
have attempted to marry each other by a marriage solemnized in apparent
compliance with law, although the attempted marriage is or could be declared
invalid,
and either of the following is true:
(1) If the attempted marriage could be declared invalid
only by a court, the child is born during the attempted marriage, or within
300 days after its termination by death, annulment, declaration of invalidity,
or divorce.
(2) If the attempted marriage is invalid without a court order,
the child is born within 300 days after the termination of cohabitation.
(c) After the child's birth, he and the child's natural mother have
married, or attempted to marry, each other by a marriage solemnized in
apparent compliance with law, although the attempted marriage is or could
be declared invalid, and either of the following is true:
(1) With his consent, he is named as the child's father
on the child's birth certificate.
(2) He is obligated to support the child under a written voluntary
promise or by court order.
(d) He receives the child into his home and openly holds out the child
as his natural child.
(e) If the child was born and resides in a nation with which the
United States engages in an Orderly Departure Program or successor program,
he acknowledges that he is the child's father in a declaration under penalty
of perjury, as specified in Section 2015.5 of the Code of Civil Procedure.
This subdivision shall remain in effect only until January 1, 1997, and
on that date shall become inoperative.
7611.5:
Where Section 7611 does not apply, a man shall not be presumed
to be the natural father of a child if either of the following is true:
(a) The child was conceived as a result of an act in violation
of Section 261 of the Penal Code and the father was convicted of that violation.
(b) The child was conceived as a result of an act in violation
of Section 261.5 of the Penal Code, the father was convicted of that violation,
and the mother was under the age of 15 years and the father was 21 years
of age or older at the time of conception.
7612:
(a) Except as provided in Chapter 1 (commencing with Section
7540) and Chapter 3 (commencing with Section 7570) of Part 2 or in Section
20102, a presumption under Section 7611 is a rebuttable presumption affecting
the burden of proof and may be rebutted in an appropriate action only by
clear and convincing evidence.
(b) If two or more presumptions arise under Section 7611 which
conflict with each other, the presumption which on the facts is founded
on the weightier considerations of policy and logic controls.
(c) The presumption under Section 7611 is rebutted by a judgment
establishing paternity of the child by another man.
7613:
(a) If, under the supervision of a licensed physician and
surgeon and with the consent of her husband, a wife is inseminated artificially
with semen donated by a man not her husband, the husband is treated in
law as if he were the natural father of a child thereby conceived.
The husband's consent must be in writing and signed by him and his wife.
The physician and surgeon shall certify their signatures and the date of
the insemination, and retain the husband's consent as part of the medical
record, where it shall be kept confidential and in a sealed file.
However, the physician and surgeon's failure to do so does not affect the
father and child relationship. All papers and records pertaining
to the insemination, whether part of the permanent record of a court or
of a file held by the supervising physician and surgeon or elsewhere, are
subject to inspection only upon an order of the court for good cause shown.
(b) The donor of semen provided to a licensed physician and surgeon
for use in artificial insemination of a woman other than the donor's wife
is treated in law as if he were not the natural father of a child thereby
conceived.
7614:
(a) A promise in writing to furnish support for a child,
growing out of a presumed or alleged father and child relationship, does
not require consideration and, subject to Section 7632, is enforceable
according to its terms.
(b) In the best interest of the child or the mother, the court
may, and upon the promisor's request shall, order the promise to be kept
in confidence and designate a person or agency to receive and disburse
on behalf of the child all amounts paid in performance of the promise.
CHAPTER 3. JURISDICTION AND VENUE
7620:
(a) A person who has sexual intercourse in this state thereby
submits to the jurisdiction of the courts of this state as to an action
brought under this part with respect to a child who may have been conceived
by that act of intercourse.
(b) An action under this part may be brought in the county in which
the child resides or is found or, if the father is deceased, in which proceedings
for probate of his estate have been or could be commenced.
CHAPTER 4. DETERMINATION OF PARENT AND CHILD RELATIONSHIP
Article 1. Determination of Father and Child Relationship
7630:
(a) A child, the child's natural mother, or a man presumed
to be the child's father under subdivision (a), (b), or (c) of Section
7611, may bring an action as follows:
(1) At any time for the purpose of declaring the existence
of the father and child relationship presumed under subdivision (a), (b),
or (c) of Section 7611.
(2) For the purpose of declaring the nonexistence of the father
and child relationship presumed under subdivision (a), (b), or (c) of Section
7611 only if the action is brought within a reasonable time after obtaining
knowledge of relevant facts. After the presumption has been rebutted,
paternity of the child by another man may be determined in the same action,
if he has been made a party.
(b) Any interested party may bring an action at any time for the purpose
of determining the existence or nonexistence of the father and child relationship
presumed under subdivision (d) of Section 7611.
(c) An action to determine the existence of the father and child
relationship with respect to a child who has no presumed father under Section
7611 or whose presumed father is deceased may be brought by the child or
personal representative of the child, the Department of Child Support Services,
the mother or the personal representative or a parent of the mother if
the mother has died or is a minor, a man alleged or alleging himself to
be the father, or the personal representative or a parent of the alleged
father if the alleged father has died or is a minor.
(d) An action under subdivision (c) shall be consolidated with
a proceeding pursuant to Section 7662 if a proceeding has been filed under
Chapter 5 (commencing with Section 7660). The parental rights of
the alleged natural father shall be determined as set forth in Section
7664. The consolidated action shall be heard in the county in which
the Section 7662 proceeding is filed, unless the court in which the action
under subdivision (c) is filed finds, by clear and convincing evidence,
that transferring the action to the other county poses a substantial hardship
to the petitioner. Mere inconvenience does not constitute a sufficient
basis for a finding of substantial hardship. If the court determines
there is a substantial hardship, the consolidated action shall be heard
in the county in which the paternity action is filed.
7631:
Except as to cases coming within Chapter 1 (commencing with Section
7540) of Part 2, a man not a presumed father may bring an action for the
purpose of declaring that he is the natural father of a child having a
presumed father under Section 7611, if the mother relinquishes for, consents
to, or proposes to relinquish for or consent to, the adoption of the child.
An action under this section shall be brought within 30 days after (1)
the man is served as prescribed in Section 7666 with a notice that he is
or could be the father of the child or (2) the birth of the child, whichever
is later. The commencement of the action suspends a pending proceeding
in connection with the adoption of the child until a judgment in the action
is final.
7632:
Regardless of its terms, an agreement between an alleged or presumed
father and the mother or child does not bar an action under this chapter.
7633:
An action under this chapter may be brought before the birth of
the child.
7634:
The local child support agency may, in the local child support
agency's discretion, bring an action under this chapter in any case in
which the local child support agency believes it to be appropriate.
§7635:
(a) The child may, if under the age of 12 years, and shall,
if 12 years of age or older, be made a party to the action. If the
child is a minor and a party to the action, the child shall be represented
by a guardian ad litem appointed by the court. The guardian ad litem
need not be represented by counsel if the guardian ad litem is a relative
of the child.
(b) The natural mother, each man presumed to be the father under
Section 7611, and each man alleged to be the natural father, may be made
parties and shall be given notice of the action in the manner prescribed
in Section 7666 and an opportunity to be heard.
(c) The court may align the parties.
(d) In any initial or subsequent proceeding under this chapter
where custody of, or visitation with, a minor child is in issue, the court
may, if it determines it would be in the best interest of the minor child,
appoint private counsel to represent the interests of the minor child pursuant
to Chapter 10 (commencing with Section 3150) of Part 2 of Division 8.
7636:
The judgment or order of the court determining the existence or
nonexistence of the parent and child relationship is determinative for
all purposes except for actions brought pursuant to Section 270 of the
Penal Code.
7637:
The judgment or order may contain any other provision directed
against the appropriate party to the proceeding, concerning the duty of
support, the custody and guardianship of the child, visitation privileges
with the child, the furnishing of bond or other security for the payment
of the judgment, or any other matter in the best interest of the child.
The judgment or order may direct the father to pay the reasonable expenses
of the mother's pregnancy and confinement.
7638:
The procedure in an action under this part to change the name of
a minor or adult child for whom a parent and child relationship is established
pursuant to Section 7636, upon application in accordance with Title 8 (commencing
with Section 1275) of Part 3 of the Code of Civil Procedure shall conform
to those provisions, except that the application for the change of name
may be included with the petition filed under this part and except as provided
in Sections 1277 and 1278 of the Code of Civil Procedure.
§7639:
If the judgment or order of the court is at variance with the child's
birth certificate, the court shall order that a new birth certificate be
issued as prescribed in Article 2 (commencing with Section 102725) of Chapter
5 of Part 1 of Division 102 of the Health and Safety Code.
§7640:
The court may order reasonable fees of counsel, experts, and the
child's guardian ad litem, and other costs of the action and pretrial proceedings,
including blood tests, to be paid by the parties, excluding any governmental
entity, in proportions and at times determined by the court.
7641:
(a) If existence of the father and child relationship is
declared, or paternity or a duty of support has been acknowledged or adjudicated
under this part or under prior law, the obligation of the father may be
enforced in the same or other proceedings by any of the following:
(1) The mother.
(2) The child.
(3) The public authority that has furnished or may furnish the
reasonable expenses of pregnancy, confinement, education, support, or funeral.
(4) Any other person, including a private agency, to the extent
the person has furnished or is furnishing these expenses.
(b) The court may order support payments to be made to any of the following:
(1) The mother.
(2) The clerk of the court.
(3) A person, corporation, or agency designated to administer the
payments for the benefit of the child under the supervision of the court.
(c) Willful failure to obey the judgment or order of the court is a
civil contempt of the court. All remedies for the enforcement of
judgments, including imprisonment for contempt, apply.
7642:
The court has continuing jurisdiction to modify or set aside a
judgment or order made under this part. A judgment or order relating
to an adoption may only be modified or set aside in the same manner and
under the same conditions as an order of adoption may be modified or set
aside under Section 9100 or 9102.
7643:
(a) Notwithstanding any other law concerning public hearings
and records, a hearing or trial held under this part may be held in closed
court without admittance of any person other than those necessary to the
action or proceeding. Except as provided in subdivision (b), all
papers and records, other than the final judgment, pertaining to the action
or proceeding, whether part of the permanent record of the court or of
a file in a public agency or elsewhere, are subject to inspection only
in exceptional cases upon an order of the court for good cause shown.
(b) Papers and records pertaining to the action or proceeding that
are part of the permanent record of the court are subject to inspection
by the parties to the action and their attorneys.
7644:
(a) Notwithstanding any other law, an action for child
custody and support and for other relief as provided in Section 7637 may
be filed based upon a voluntary declaration of paternity as
provided in Chapter 3 (commencing with Section 7570) of Part 2.
(b) Except as provided in Section 7576, the voluntary declaration
of paternity shall be given the same force and effect as a judgment of
paternity entered by a court of competent jurisdiction. The court
shall make appropriate orders as specified in Section 7637 based upon the
voluntary declaration of paternity unless evidence is presented that the
voluntary declaration of paternity has been rescinded by the parties or
set aside as provided in Section 7575 of the Family Code.
(c) The Judicial Council shall develop the forms and procedures
necessary to implement this section.
