12th Jul 2012

dna

In California paternity cases where a Judgment of Paternity has previously been entered by the Court, there are circumstances where the found “father” later finds out he may not, in fact, be the “biological father”.  The question arises if the finding of paternity can be set aside by the Court.  The answer is yes, but only in limited circumstances.

California Family Law Code sections 7645 et seq. set forth the procedures regarding setting aside or vacating a Judgment of Paternity.  There are also California Judicial Counsel Forms related thereto, and forms FL-272 and FL 273 provide a generalized overview of the process and necessary prerequisites thereto.

There is a two (2) year limitation after the “father” knew, or should have known, that the child is not his child to bring the same.  Family Law Code section 7647 provides that it is not necessary to have a paternity test as a prerequisite to the filing.  That said, needs to be an adequate explanation to the court as to why paternity is being questioned and other prerequisites must be met.  Obviously, a paternity test in advance would be helpful in trying to set aside a paternity judgment (if it showed paternity the set aside would not be requested) and, in most likely hood if there is no biological paternity found, the primary remaining issue would most likely be if the set aside request was timely.

California Judicial Counsel Form FL-272 is entitled  Notice of Motion to Set Aside Judgment of Paternity, and FL-273 is entitled Declaration in Support of Motion to Set AsideJudgment of Paternity.  These forms are used to attempt to set aside (vacate) an existing paternity judgment.   The forms provide the following information:

If there is also a corresponding voluntary declaration of
paternity, this motion may also be used to set aside the voluntary declaration of paternity. The voluntary declaration of paternity and/or
judgment

of paternity may be set aside only if the previously established father is determined by genetic testing not to be the biological
father of the child. (Even if the motion can be brought as described below, there may be other grounds to set aside the paternity
judgment or other related relief may be available. You may wish to consult with an attorney or the family law facilitator.) In addition to
this motion, you may file a separate motion to modify child support and set arrears. For information on changing the support order, see
the Information Sheet on Changing a Child Support Order on pages 3-5 of form FL-192.

The following persons may bring this motion:
A previously established mother;
A previously established father;
A child;
A legal representative of any of the above persons; or
A Local Child Support Agency (LCSA).

This motion must be brought within the following time frames:
Within a two-year period commencing with the date:
on which the previously established father knew or should have known of a judgment that established him as the
father of the child (for example, the date a wage garnishment was served), or on which the previously established father knew or should have known of the existence of an action to adjudicate the
issue of paternity (for example, the date of service of a summons),
Within a two-year period commencing with the date of the child’s birth if paternity was established by a voluntary
declaration of paternity.
In the case of any previously established father who is the legal father as

This motion may not be brought

if any of the following conditions apply:
The paternity judgment resulted from a marital dissolution, legal separation, or nullity action.
The marital presumption contained in Family Code section 7540

applies.
There is a voluntary declaration of paternity, and there is no basis to set aside the voluntary declaration of paternity.
There is another California judgment of paternity in a different case for the same previously established father and child,
unless both paternity

judgments qualify for this motion and you filed a motion in each case.
The paternity

judgment was not issued in California.
The paternity judgment is based on genetic tests that were conducted before the judgment and that indicated the previously
established father is the biological father of the child.
The judgment is based on an adoption.
The child was conceived by artificial insemination, and the judgment is based on Family Code section 7613.
The child was conceived under a surrogacy agreement.

If the conditions apply and there is a substantial question of paternity, the found “father” should immediately contact a qualified attorney and timely bring the matter before the Court if the father seeks to set aside the Court’s finding.

I have been involved with several cases where, after the fact, a father finds he is not the biological father; however, he does not want to set aside the Judgment of Paternity because he has for all practical matters become the only real father the child has.  The child really becomes his child regardless of who was in fact the “biological father”.  That said, the client makes that choice and it is important decision which may be a financial decision related to child support or an emotional decision related to child bonding or possibly establishing true family lines.

 

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