Published: 2015-07-08
Key Benefits:
For purposes of this article, the following definitions shall apply:
(a) “Child” means the child of a previously established father, as determined by the superior court in a judgment that is the subject of a motion brought pursuant to this article, or as a matter of law.
(b) “Judgment” means a judgment, order, or decree entered in a court of this state that establishes paternity, including a determination of paternity made pursuant to a petition filed under Section 300, 601, or 602 of the Welfare and Institutions Code, or a voluntary declaration of paternity. For purposes of this article, “judgment” does not include a judgment in any action for marital dissolution, legal separation, or nullity.
(c) “Previously established father” means a person identified as the father of a child in a judgment that is the subject of a motion brought pursuant to this article.
(d) “Previously established mother” means a person identified as the mother of a child in a judgment that is the subject of a motion brought pursuant to this article.
(Added by Stats. 2004, Ch. 849, Sec. 4. Effective January 1, 2005.)
(a) Notwithstanding any other provision of law, a judgment establishing paternity may be set aside or vacated upon a motion by the previously established mother of a child, the previously established father of a child, the child, or the legal representative of any of these persons if genetic testing indicates that the previously established father of a child is not the biological father of the child. The motion shall be brought within one of the following time periods:
(1) 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 or commencing with the date the previously established father knew or should have known of the existence of an action to adjudicate the issue of paternity, whichever is first, except as provided in paragraph (2) or (3) of this subdivision.
(2) Within a two-year period commencing with the date of the child’s birth if paternity was established by a voluntary declaration of paternity. Nothing in this paragraph shall bar any rights under subdivision (c) of Section 7575.
(3) In the case of any previously established father who is the legal father as a result of a default judgment as of the effective date of this section, within a two-year period from January 1, 2005, to December 31, 2006, inclusive.
(b) Subdivision (a) does not apply if the child is presumed to be a child of a marriage pursuant to Section 7540.
(c) Reconsideration of a motion brought under paragraph (3) of subdivision (a) may be requested and granted if the following requirements are met:
(1) The motion was filed with the court between September 24, 2006, and December 31, 2006, inclusive.
(2) The motion was denied solely on the basis that it was untimely.
(3) The request for reconsideration of the motion is filed on or before December 31, 2009.
(Amended by Stats. 2008, Ch. 58, Sec. 1. Effective January 1, 2009.)
(a) A court may grant a motion to set aside or vacate a judgment establishing paternity only if all of the following conditions are met:
(1) The motion is filed in a court of proper venue.
(2) The motion contains, at a minimum, all of the following information, if known:
(A) The legal name, age, county of residence, and residence address of the child.
(B) The names, mailing addresses, and counties of residence, or, if deceased, the date and place of death, of the following persons:
(i) The previously established father and the previously established mother, and the biological mother and father of the child.
(ii) The guardian of the child, if any.
(iii) Any person who has physical custody of the child.
(iv) The guardian ad litem of the child, if any, as appointed pursuant to Section 7647.5.
(C) A declaration that the person filing the motion believes that the previously established father is not the biological father of the child, the specific reasons for this belief, and a declaration that the person desires that the motion be granted. The moving party is not required to present evidence of a paternity test indicating that the previously established father is not the biological father of the child in order to bring this motion pursuant to Section 7646.
(D) A declaration that the marital presumption set forth in Section 7540 does not apply.
(3) The court finds that the conclusions of the expert, as described in Section 7552, and as supported by the evidence, are that the previously established father is not the biological father of the child.
(b) The motion shall include a proof of service upon the following persons, excluding the person bringing the motion:
(1) The previously established mother.
(2) The previously established father.
(3) The local child support agency, if services are being provided to the child pursuant to Title IV-D or IV-E of the Social Security Act (42 U.S.C. Sec. 651 et seq. and 42 U.S.C. Sec. 670 et seq.).
(4) The child’s guardian ad litem, if any.
(Added by Stats. 2004, Ch. 849, Sec. 4. Effective January 1, 2005.)
A guardian ad litem may be appointed for the child to represent the best interests of the child in an action brought pursuant to this article.
(Added by Stats. 2004, Ch. 849, Sec. 4. Effective January 1, 2005.)
Any genetic testing used to support the motion to set aside or vacate shall be conducted in accordance with Section 7552. The court shall, at the request of any person authorized to make a motion pursuant to this article, or may upon its own motion, order genetic testing to assist the court in making a determination whether the previously established father is the biological father of the child.
(Added by Stats. 2004, Ch. 849, Sec. 4. Effective January 1, 2005.)
If the court finds that the conclusions of all of the experts, based upon the results of genetic tests performed pursuant to Chapter 2 (commencing with Section 7550) of Part 2, indicate that the previously established father is not the biological father of the child, the court may, nevertheless, deny the motion if it determines that denial of the motion is in the best interest of the child, after consideration of the following factors:
(a) The age of the child.
(b) The length of time since the entry of the judgment establishing paternity.
(c) The nature, duration, and quality of any relationship between the previously established father and the child, including the duration and frequency of any time periods during which the child and the previously established father resided in the same household or enjoyed a parent-child relationship.
(d) The request of the previously established father that the parent-child relationship continue.
(e) Notice by the biological father of the child that he does not oppose preservation of the relationship between the previously established father and the child.
(f) The benefit or detriment to the child in establishing the biological parentage of the child.
(g) Whether the conduct of the previously established father has impaired the ability to ascertain the identity of, or get support from, the biological father.
(h) Additional factors deemed by the court to be relevant to its determination of the best interest of the child.
(Added by Stats. 2004, Ch. 849, Sec. 4. Effective January 1, 2005.)
If the court denies a motion pursuant to Section 7648, the court shall state on the record the basis for the denial of that motion and any supporting facts.
(Added by Stats. 2004, Ch. 849, Sec. 4. Effective January 1, 2005.)
(a) This section applies only to cases where support enforcement services are being provided by a local child support agency pursuant to Section 17400.
(b) Upon receipt of any motion brought pursuant to Section 7646, the local child support agency may issue an administrative order requiring the mother, child, and the previously established father to submit to genetic testing if all of the conditions of paragraphs (1) and (2) of subdivision (a) of Section 7647 are satisfied.
(c) The local child support agency shall pay the costs of any genetic tests that are ordered under subdivision (b) or are ordered by a court for cases in which the local child support agency is providing services under Title IV-D of the Social Security Act (42 U.S.C. Sec. 651 et seq.).
(d) Nothing in this section prohibits any person who has been ordered by a local child support agency to submit to genetic tests pursuant to this section from filing a notice of motion with the court 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 7647.7. 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.
(Added by Stats. 2004, Ch. 849, Sec. 4. Effective January 1, 2005.)
A court may not issue an order setting aside or vacating a judgment establishing paternity pursuant to this article under any of the following circumstances:
(a) The judgment was made or entered by a tribunal of another state, even if the enforcement of that judgment is sought in this state.
(b) The judgment was made or entered in this state and genetic tests were conducted prior to the entry of the judgment which did not exclude the previously established father as the biological father of the child.
(Added by Stats. 2004, Ch. 849, Sec. 4. Effective January 1, 2005.)
Notwithstanding any other provision of law, if the court grants a motion to set aside or vacate a paternity judgment pursuant to this article, the court shall vacate any order for child support and arrearages issued on the basis of that previous judgment of paternity. The previously established father has no right of reimbursement for any amount of support paid prior to the granting of the motion.
(Added by Stats. 2004, Ch. 849, Sec. 4. Effective January 1, 2005.)
This article does not establish a basis for termination of any adoption, and does not affect any obligation of an adoptive parent to an adoptive child.
(Added by Stats. 2004, Ch. 849, Sec. 4. Effective January 1, 2005.)
This article does not establish a basis for setting aside or vacating a judgment establishing paternity with regard to a child conceived by assisted reproduction pursuant to Section 7613 or a child conceived pursuant to a surrogacy agreement.
(Amended by Stats. 2013, Ch. 510, Sec. 14. Effective January 1, 2014.)
Nothing in this article shall limit the rights and remedies available under any other provision of law with regard to setting aside or vacating a judgment of paternity or a voluntary declaration of paternity.
(Added by Stats. 2004, Ch. 849, Sec. 4. Effective January 1, 2005.)
Notwithstanding any other provision of this article, a distribution from the estate of a decedent or payment made by a trustee, insurance company, pension fund, or any other person or entity that was made in good faith reliance on a judgment establishing paternity that is final for purposes of direct appeal, may not be set aside or subject to direct or collateral attack because of the entry of an order setting aside or vacating a judgment under this article. An estate, trust, personal representative, trustee, or any other person or entity that made that distribution or payment may not incur any liability to any person because of the distribution or payment or because of the entry of an order under this article.
(Added by Stats. 2004, Ch. 849, Sec. 4. Effective January 1, 2005.)
