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CALIFORNIA FAMILY CODE
PRESUMPTION CONCERNING CHILD OF MARRIAGE AND
ESTABLISHMENT OF PATERNITY BY VOLUNTARY DECLARATION
Family Code Section 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 unless the court determines that denial of the
action to set aside the voluntary declaration of paternity is in the best
interest of the child, after consideration of all of the following factors:
(A) The age of the child.
(B) The length of time since the execution of the voluntary declaration
of paternity by the man who signed the voluntary declaration.
(C) The nature, duration, and quality of any relationship between the man
who signed the voluntary declaration and the child, including the duration
and frequency of any time periods during which the child and the man who
signed the voluntary declaration resided in the same household or enjoyed
a parent-child relationship.
(D) The request of the man who signed the voluntary declaration 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 man who signed the voluntary
declaration 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 man who signed the voluntary declaration
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.
(2) If the court denies the action, the court shall state on the record
the basis for the denial of the action and any supporting facts.
(3) (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 acknowledgment of paternity and a judgment of paternity or a
conflict between two or more voluntary acknowledgments of paternity.
(4) 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 an initial order for custody,
visitation, or child support based upon a voluntary declaration of paternity.
(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.