POP Declaration and Your Options
You have been sued for paternity and child support by your local child support agency (LCSA). You get served with the paperwork, you recognize the woman alleging the paternity, the timeline matches your relationship with her, and since it is the government alleging are the dad, then you must be dad, right? Wrong! For all you know, the woman could have named five potential dads and they are just going down the list trying to exclude each potential dad until they get a judgment against one of them. And the judgment need not be pursuant to DNA testing necessarily; it could be pursuant to your admission (not recommended) or pursuant to a default judgment (also not recommended). Better to assert your rights early by hiring competent representation so to avoid upwards of 18 years of child support, health insurance coverage, and uninsured medical reimbursement.
One thing to remember in California though is that the magic number in California is two; you have two years from the birth of the child or two years from when you knew or should have known that a judgment of paternity exists against you to seek genetic testing.
One area filled with problems (constitutional and practical) is the Paternity Opportunity Program (aka, “POP declarations” or “voluntary declaration of paternity”) codified in Family Code sections 7570 et. seq. In trying to address the issue of paternity for the many children born out of wedlock, and to save judicial resources, the legislature has come up with a simple way of establishing paternity at the time of a birth to an unwed mothers in California. Shortly after birth, a member of the hospital’s staff will inquire if the “father” is willing to sign a voluntary paternity declaration. In getting their signature, the hospital staff is supposed to inform them that within 60 days, unless rescinded, the declaration will become a “judgment” of paternity. (The Code also gives them two years to file an action with the court to set aside the declaration of paternity.)
I always found the whole regime a bit coercive because of the timing. Immediately after the birth, before the mother and child leave the hospital, the would-be father is asked to sign the form. This is usually done in the hospital room in front of the mother and whatever family or friends visiting. What is the guy supposed to say? “No, I want genetic testing first?” Yes! That is exactly what they are “supposed” to say. But what are you effectively saying if you asked for genetic testing? You are at best saying I don’t completely trust this woman, or more harshly you are calling her a “slut.” I am sure the 60-day rescission period is supposed to alleviate this concern. I for one, however, see it more like those old compact disk clubs that used to send you a CD every month unless you sent in their postcard in a timely matter stating you don’t want the “selection of the month.” How many unwanted CDs have we all paid for not sending the postcards in a timely manner. Is the solution to give them 60 days to opt in?
One thing that I have noticed the LCSAs do is that if there is a POP declaration in existence, when filing a Summons & Complaint, they do not plead paternity. In other words, they don’t think paternity need to be proven asserting it is res judicata via the POP declaration. And if the child is more that two years old, they assert that the defendant’s time to challenge paternity has expired. In support of that proposition, they cite to Family Code section 7646(b)(1): “[a motion to set aside shall be brought]
[w]ithin a two-year period commencing with the date of the child’s birth if paternity was established by a voluntary declaration of paternity.”And their position would be conclusive if that is all that 7646(b)(1) said. However, it continues, “Nothing in this paragraph shall bar any rights under subdivision (c) of Section 7575.” The latter code section in turn states that, “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.” Family Code 7575(c)(1). It therefore appears to be clear that the POP declaration set aside may be extended in time past the two-year mark if it is to be served as the basis for “an initial order for custody, visitation or child support.” Most LCSAs seem to want to ignore the latter part of 7646(b)(1). Why? Regardless of whether it is expediency or lack of competence, the legislature would not provide for these additional safeguards if it did not intend to do so. All of these technicalities serve as a reminder that though on their face they may appear to be simple issues, they are anything but. Asserting your rights early and competently are the best ways of protecting your interests.
H. William Edgar is the principal attorney at the Law offices of H. William Edgar with offices in Riverside, Temecula and Anaheim, covering all of Southern California. www.edgarfamilylaw.com. Call for a free consultation.