Friday, March 27, 2026
Page 3
Court of Appeal:
Judge Erred in Ignoring ‘Invalid’ Nuptial in Parentage Clash
Opinion Says Presumption That ‘Husband’ Is Father Defeats Mother’s Declaration That Other Party Is Parent Even if Union May Be Void Due to False Claims in Application for Confidential Matrimony Status
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal held yesterday that a trial judge erred in declining to set aside a declaration of parentage based on a presumption in California law that a mother’s husband is the father, finding that the Family Code makes clear that even “attempted marriages” trigger the rule even if the confidential union may have been legally invalid due to falsities in an affidavit accompanying the license application.
At issue is a statutory scheme found at Family Code §§7573 and 7573.5, which provides that an unmarried woman and a “genetic parent” may sign a voluntary declaration of parentage (“VDOP”) unless another party is the presumed parent under California law.
Sec. 7611, in turn, specifies that the husband or the mother holds such status if the “child is born during the marriage, or within 300 days after the marriage is terminated,” and that the presumption stands even if an “attempted marriage is or could be declared invalid” by a court or is void without the need for judicial intervention.
Justice Martin N. Buchanan authored yesterday’s opinion, joined in by Acting Presiding Justice Terry B. O’Rourke and Justice David M. Rubin, saying:
“[W]e conclude that a ‘presumed parent and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid,’ under section 7611…where they have applied for and received a marriage license and procured an official certificate of marriage.”
Saying that “we neither validate [the] marriage, nor overlook the trial court’s finding that they obtained such marriage by incorrectly attesting that they had been ‘living together as spouses,’ ” Buchanan commented:
“[W]e merely hold that, consistent with the text of section 7611,…even an ‘attempted marriage,’ that ‘is or could be declared invalid,’ may give rise to presume[d] parenthood status under certain circumstances, and that those circumstances are present in this case.”
Custody Petition
The question arose after Steven Nunez filed a petition for custody of a two-year-old girl (identified in the opinion only as “Stella”) in August 2024. He attached a VDOP to his request, indicating that the child’s birth mother, Priscilla Cacho, was unmarried when the document was signed on Oct. 5, 2021, the day after Stella’s birth.
Despite having signed the document attesting that she is the “Birth Parent” and that Nunez is the genetic father, Cacho opposed the custody request, claiming that the declaration was void because she was married at the time of Stella’s birth.
She attached a “Confidential License and Certificate of Marriage,” dated in October 2020 and registered by the County of San Diego, that purportedly shows that she married someone else the year before the child’s birth. Such “confidential” certificates are authorized under Family Code §500, which provides that two people who have been cohabitating as spouses may be joined in matrimony privately to avoid scrutiny.
Cacho later testified that she and her “husband” did not present themselves as a married couple before their wedding day, and Nunez swore that he and Cacho were living together as an engaged couple as of July 2020.
San Diego Superior Court Judge Rebecca Church declined Cacho’s request to set aside the declaration, saying that Cacho “was not disqualified from executing the VDOP, as the marriage was invalid pursuant to the confidential marriage license that was secured” because “it’s clear…that [Cacho] was not cohabitating” with her purported husband before the marriage.
Not Appealable
Buchanan acknowledged that the denial was not appealable as it “did not resolve the underlying custody issue,” but said that “we exercise our discretion to treat [Cacho’s] appeal as a petition for writ of mandate.” He noted:
“[T]he trial court’s ruling declaring Priscilla’s marriage ‘invalid’ may have significant collateral consequences that would be avoided by our proper application of the [law]. These circumstances further support the conclusion that we should exercise our discretion to treat Priscilla’s appeal as a petition for writ of mandate.”
Addressing the merits, the jurist examined the history of the VDOP statutory scheme, noting that the Legislature amended the law in 2011 to carve out circumstances where the child has a presumed parent in order to support marital unity and public policy favoring children having two parents, noting a concern that the process could be manipulated by a biological mother to exclude her husband from child-rearing.
He acknowledged that “there is no California authority interpreting the meaning of ‘attempted to marry each other by a marriage solemnized in apparent compliance with law,’ ” but found guidance from a 2021 decision by the Utah Supreme Court addressing similar language and finding that a husband seeking to nullify an adoption was the presumed parent even though the marriage was later invalidated due to bigamy.
California Precedent
The jurist added:
“The Utah court’s reasoning is also consistent with California Supreme Court cases that have concluded, since the early days of statehood, that even a marriage that is invalid as between the parties may be given effect with respect to children arising from such relationship.”
Saying that it was unclear whether a confidential marriage obtained through an inaccurate attestation is void at its inception, he declared:
“The record establishes that Priscilla…obtained a facially valid marriage certificate on October 19, 2020 and that Stella was born on October 4, 2021….[T]here is no legal basis to conclude that their marriage was ‘invalid without a court order.’…This remains true, even if the trial court correctly determined that Priscilla ‘was not cohabiting as spouses with [her asserted husband] when securing the confidential marriage license…’ Even assuming strictly for the sake of this opinion that the trial court’s finding in this regard would support invalidating Priscilla and Gianni’s marriage, the marriage ‘could be declared invalid only by a court’….”
Buchanan continued:
“[W]e need not, and do not, determine the actual validity of a confidential marriage obtained in this fashion….[W]e conclude that a person who has obtained a confidential marriage to a birth parent based upon an inaccurate statement that the couple has been ‘living together as spouses,’…nevertheless obtains presumed parent status under section 7611, subdivision (b)(1) over a child who is born ‘during the attempted marriage.’ ”
He declared:
“Let a peremptory writ of mandate issue directing the trial court to vacate its order denying Priscilla’s application to set aside the October 5, 2021 VDOP and to enter a new order granting Priscilla’s application.”
The case is Steven N. v. Pricilla C., D085731.
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