• How to Set Aside a Paternity Judgment

How to Set Aside a Paternity Judgment

Establishing paternity is a major psychological and economical factor that affects a child’s life.  For a child born to a married couple, that child is considered legitimate under California law. However, if a mother is unmarried, the person named as the child’s father on a birth certificate does not, in fact, legally establish paternity. Furthermore,  there is no requirement that the birth certificate of a newborn is signed by the father. Therefore, a unwed mother can list anyone she wants on the birth certificate as the child’s father, with or without that person’s knowledge. This does not, however, legally establish paternity. But what happens if a person discovers a court has established them to be the biological father without their knowledge? Read on to learn how to set aside a paternity judgment.

For a father, establishing paternity goes hand-in-hand with being accountable to support the child and share responsibility for the child’s upbringing. If a father wants to prove that he is the biological father, paternity can easily be established with a paternity test. On the other hand, if a father has been named on a birth certificate but believes they are not the father of the child, paternity can be disestablished with a paternity test as well.

California’s Paternity Disestablishment Bill

In 2004, California legislature passed a Paternity Disestablishment Bill which expands the opportunity to request the court to set aside or vacate a paternity judgment or declaration. The law creates an additional opportunity for alleged fathers to challenge a judgment of paternity on the basis of genetic testing when the genetic testing shows that the previously established father is not the biological father.

If a paternity judgment has been entered against a father but the alleged father disputes paternity, A People’s Choice can help prepare the necessary legal paperwork to ask the court to set aside the paternity judgment. Contact us for more information on how we can help prepare the documents to set aside a paternity judgment. Keep in mind, however, that there is a two-year limitation for a party to file this type of motion. An “alleged father” disputing paternity should not delay in filing a request to set aside a paternity judgment.

“So glad I found A People’s Choice to help me file a motion to dispute paternity. I was contacted by the Department of Child Support Services out of the blue, trying to collect child support from me.” J. Farias
“I was able to require a paternity test, prove that I was not child’s father as the mother claimed, and the process did not cost me thousands of dollars which is what an attorney quoted!” J. Farias

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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. Subdivision (a) does not apply if the child is presumed to be a child of a marriage pursuant to Section 7540. See Family Law Code section 7646 (a).

How to Set Aside a Paternity Judgment

A man may have learned there is a paternity order made by a court that they are the biological father of a child. Conversely, a mother may have discovered the man she “thought” was the father of her child really isn’t. If a person believes that a legal error was made in regards to a paternity judgment or order stemming from a divorce or family law case, they may have legal grounds to file a motion to set it aside.  The following steps describe how to set aside a paternity judgment in California.

First, file a Notice of Motion on Judicial Council Form FL-272 and FL 273 to ask the court to set aside or vacate a paternity judgment. A “Declaration in Support of a Motion to Set Aside a Judgment of Paternity” must be attached to the motion. The declaration must be signed by the moving party under the penalty of perjury and served on the non-moving party. It should include specific factual information to support the moving party’s claim of why he/she believes that the previously established father is not the biological father. A judgment of paternity may only be set aside if the previously established father is determined by genetic testing to not be the biological father of the child. Be aware, however, even if a previously established father is found not to be the biological father, the court can still deny this motion if it is in the best interest of the child.

Genetic testing can be conducted after the motion is filed with the court. If the court vacates or sets aside the judgment of paternity, the court will relieve the obligor of any child support payments and past due arrears. The obligor, however, will not be entitled to reimbursement for support paid to date.

Contact A People’s Choice for more information on how to set aside a paternity judgment in California. We can help you draft the forms and declaration to petition the court to set aside the paternity judgment.

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By |2018-01-18T15:46:39+00:00September 14th, 2016|Family Law, Paternity|0 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

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