Per Family Code Section 4251 a Parent’s Failure to Object Prior to the Hearing Before the Second Commissioner Precludes Him from Seeking De Novo Review by a Judge

A father stipulated to paternity and agreed to pay child support for his daughter. He made payments for one year then stopped making support payments and stopped visiting his daughter. Thirteen years later the mother asked the district attorney’s office to enforce the support order. The district attorney’s office sent the father a bill for both arreages and current support, then registered the support order. The father sought modification, and to have a judge rather than a commissioner hear the case. His requests were denied. The trial court made several holdings. First, the father was precluded from seeking de novo review by a judge. Second, the equitable defense of laches did not apply. Third, the paternity stipulation was valid.

Family Code section 4251 states that spousal and child support cases must be heard by a commissioner unless either a local child support agency or any other party objects. The commissioner then hears the case even if there is an objection. A judge then ratifies within ten days the recommended order, unless there is an objection. If there is an objection the judge schedules a hearing de novo. An objection is required both before and after the commissioner rules. Thus the father’s failure to object prior to the hearing before the second commissioner precluded him from seeking de novo review by a judge.

The equitable defense of laches arises when there is an unreasonable delay in asserting an equitable right that causes undue prejudice to the defendant. Even if the mother’s delay in waiting thirteen years to seek order enforcement was unreasonable, the father was not unduly prejudiced. He had voluntarily abandoned his daughter to forego paying child support, which defeats his laches claim. The father thus did not come into court with clean hands, which is required in a court of equity.

Finally, a paternity stipulation is voidable under certain circumstances. A paternity stipulation is voidable if an unrepresented parent can show he was not advised of his right to trial, was unaware of that right to trial, and would not have executed the stipulation had he known his rights. However, a parent may not use a motion to modify a child support obligation as a method to reopen a paternity issue after a final judgment of paternity was rendered. There was no evidence offered that showed the father was unaware of his right to trial, nor that he would have refused to sign the paternity stipulation had he known.

The appellate court held that the father was not entitled to a hearing de novo before a superior court judge, and affirmed the trial court decision.

County of Orange v. Smith (2002) 96 Cal.App.4th