A Declaration of Paternity Trumps the Boyfriend’s Rebuttable Presumption of Paternity.

Kevin (Respondent) and Lauren (Appellant) started a relationship in February of 2003. Appellant and her first son moved in with Respondent, then moved out, and then moved back in when Appellant was pregnant with her second son. Respondent petitioned under Section 7630 to establish a parental relationship as the child’s presumed father and sought legal and physical custody of, and reasonable visitation with, the child. Respondent declared that his friends and family attended Appellant’s baby shower, he went to the hospital twice when Appellant had false labor pains, he was present for the child’s birth, he sent out a birth announcement to his family and friends, and his parents visited the child believing him to be their grandson. Furthermore, Respondent was financially responsible for the child and took time off work to take care of him. Respondent declares that Appellant suffers from emotional and health related problems, including alcoholism and drug abuse; and that it was her cocaine use in July 2006 that ultimately destroyed their relationship.

Appellant’s Orange County family law attorney opposed Respondent’s request for an ex parte custody order and argued there was no risk of immediate harm to the child. Additionally, she alleges she was never served with a Section 7630 petition to establish a parental relationship. At an ex parte hearing on Respondent’s order to show for cause, the judge found Respondent made a prima facie showing that he is the presumptive father of the child and granted him visitation. A few days later Appellant’s Orange County family law attorney filed an order to show cause requesting that the ex parte orders be set aside. Appellant’s Orange County family law attorney argued that Appellant’s due process rights had been violated. Furthermore, the Appellant’s Orange County family law attorney argued that Judge Miller stated that “she had not read the pleadings, but found that [Respondent] had made a prima facie case as a presumed father because the judge recalled [Respondent] coming into the courtroom and showing pictures of the minor to her and the staff.” Furthermore, Appellant’s Orange County family law attorney filed a voluntary declaration of paternity signed and dated by the biological father with a witness from the Department of Child Support Services. On December 2007, Appellant’s Orange County family law attorney filed with the court a copy of the voluntary declaration of paternity. The judge weighed the paternity claim against that of the biological father and concluded that Respondent was the child’s biological father under the rebuttable presumption established in Section 7611 subdivision (d) for a man who “receives the child into his home and openly holds out the child as his natural child.”

The presumed fatherhood status under Section 7611 entitles a man to custody of a child. Under Section 7574, a valid declaration of paternity must be signed by both a mother and the man she identifies as her child’s “only possible father.” The declaration of paternity must contain, a statement by the father that he understands that he is waiving his constitutional right “to have the issue of paternity decided by a court”; “that he is the biological father of the child; and then he consents to the establishment of paternity.” Unless rescinded or set aside, a voluntary declaration of paternity signed by adult parents on or after January 1, 1997, is treated as a judgment. In contrast, voluntary declarations of paternity signed before 1997 create a conclusive presumption of paternity with the same force and effect of the conclusive presumption under Section 7450 (child of a marriage). The Uniform Parentage Act section 7611 establishes rebuttable paternity presumptions. More specifically, subdivision (d) provides that a man is presumed to be the father if he “receives the child into his home and openly holds out the child as his natural child.”

Respondent’s Orange County family law attorney contends there is no evidence of the biological father’s voluntary declaration of paternity being filed with the Department of Child Support Services. However, the Court of Appeal in Orange County held that the certified copy of the biological father’s declaration of paternity leaves no doubt it was submitted to the Department of Child Support Services.

This Court of Appeal in Orange County looked at the language of Section 7573 which states, a voluntary declaration of paternity, duly completed and filed after 1996, has “the same force and effect as a judgment of paternity of the child by another man.” Furthermore, Section 7612 subdivision (a), listing the Section 7611 presumptions that are rebuttable, expressly excludes presumed father status arising from a declaration of paternity as one of the rebuttable presumptions. Respondent’s Orange County family law attorney never availed himself of statutory options for challenging the biological father’s voluntary declaration, such as moving for genetic tests or challenging the declaration of equitable grounds such as extrinsic fraud. This Court of Appeal found that the biological father signed and filed a valid declaration of paternity that has the force of a judgment under section 7573, and trumps Respondent’s presumption under Section 7611(d). The Court of Appeal reversed the judgment of the Orange County family court and found that the biological father is the child’s legal father.

Kevin Q. v. Lauren W., 170 Cal.App.4th 1557 (2009)