Metropolitan News-Enterprise


Monday, June 22, 2009


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Court Clarifies Effect of Voluntary Declaration of Paternity




A voluntary declaration of paternity, filed in statutory form with Department of Child Support Services, takes precedence over the presumption of paternity arising from having held a child out as one’s own, the Fourth District Court of Appeal ruled Friday.

Div. Three, in an opinion by Justice Raymond Ikola, said Orange Superior Court Judge Robert Monarch erred in ruling that an Orange County family law attorney, identified in the opinion as Kevin Q., was the father of his former girlfriend’s son.

The child was born in 2005. The mother, identified as Lauren W., and her older child lived with Kevin Q., beginning in 2003, moved out for a time, but moved back in while she was pregnant with Matthew W., the subject of the paternity dispute. The mother and sons moved out when Matthew was 20 months old.

A month after Lauren W. left, Kevin Q. petitioned to be declared Matthew’s father, and sought legal and physical custody and visitation. He acknowledged that he was not the child’s biological father, but asserted presumed father status under Family Code Sec. 7611(d).

The statute creates a rebuttable presumption that a man is the father of a child born out of wedlock if he “receives the child into his home and openly holds out the child as his natural child.”

The presumption may be rebutted by clear and convincing evidence, provided that if another man is also the presumed father, the conflict must be resolved based on “weightier considerations of policy and logic.” The law further provides that the presumption “is rebutted by a judgment establishing paternity of the child by another man.”

Presumed Father

To support his claim of presumed fatherhood, Kevin Q. declared that he had identified Matthew as his son to his family and friends, was present when he was born, paid for his medical care and other expenses, purchased a larger home so that the family could live as a unit, and helped care for the boys.

He also accused the mother of being indifferent to child-rearing responsibilities, emotionally and physically unhealthy, and prone to alcohol and drug abuse. Their relationship, he claimed, ended because she became violent while using cocaine.

Lauren W. responded that she had told her family and friends that Kevin Q. was not the child’s father and did not list him as such on the birth certificate, that she did not approve of his telling his parents and others that he was the father, and that he had hit her and the older child and frequently smoked marijuana.

She denied drinking or using cocaine. She acknowledged using prescription drugs due to a painful medical condition, but declared that she was able to care for the boys.

Voluntary Declaration

In April 2007, the mother filed a pleading to which she attached a copy of a voluntary declaration of paternity signed by Brent A. pursuant to Sec. 7573, along with a copy of their application to amend the child’s birth certificate. Sec. 7573 provides that a voluntary declaration of paternity, signed by the mother and the man identified by her as the natural father, has the same effect as a judgment of paternity.

The declaration may be rescinded by either declarant within 60 days of its execution. It may be set aside by the court, but only under Code of Civil Procedure Sec. 473, or upon proof via genetic testing that the man is not the father, and even then the court may decline to set it aside based on the child’s best interests.

In Brent A.’s case, a DNA test report showed with 99.983 percent certainty that he was Matthew’s father.

The mother also brought a paternity action, naming Brent A. as the father. The parties stipulated that Brent be declared the father, that the parties share joint legal custody, and that the mother have physical custody with visitation rights for the father.

Judicial Assignment

After sparring between Lauren W. and Kevin Q. with regard to which judge would hear the consolidated cases, they were assigned to Monarch, who normally heard general civil, rather than family law, cases.

Brent A. did not appear for trial, and his attorney asked to be relieved because he had been unable to contact him for some time. The judge ordered that Kevin Q. be declared the father under Sec. 7611(d).

Ikola, however, said the ruling was contrary to the plain language of the statutes. Because the voluntary declaration of paternity was executed and filed as provided by the code, and was not rescinded or set aside, it necessarily took precedence over the Sec. 7611(d) presumption, the justice said.

The trial judge, Ikola said, erroneously interpreted the statutes as placing the two men “on equal footing” and employed an improper balancing test to reach his decision:

“Although Kevin questions Brent’s motivation for signing a declaration of paternity, he does not contend the declaration lacks legal effect. Nor can he. By signing the voluntary declaration, Brent waived his constitutional rights and established his paternity of Matthew with concomitant rights and obligations, including child support...

“In sum, Brent signed and filed a valid declaration of paternity that has the force of a judgment under section 7573 and trumps Kevin’s presumption under section 7611, subdivision (d).”

The case is Kevin Q. v. Lauren W., 09 S.O.S. 3780.


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