Legal Question in Family Law in California

Cont. of paternity service on Mother question: Attorney Anthony A. Roach;

Mother did not name the alleged father as father, the county welfare office took it upon them selves due to the illegally recorded birth record.

See Mother says, that the state had an obligation to check with the POP-Parental opportunity program to assure that the Declaration of paternity was in fact on file and properly so, that being prior to issuing a Birth Cert. naming the alleged dad as father, that had that been done the father section would have read unknown.

Mother said that the county did not state that they were going to press the father for arrears due to the separation being a result of domestic violence acts from him to her, where the child and mother were residing in a hidden private location domestic violence shelter where they fled with only the clothes on there back.

However since they failed to do what they said by going forwards and filing for the arrears against the respondent dad, the certificate was then passed absent the legal pop declaration being filed. The county and welfare office we assumed would do as they said they would and not file against him for she was in terrible fear of his retribution and ability to possibly locate her and child. The birth record should have been amended before it was issued had the state done what they should have and confirmed its filing. At which time the state would have been made aware that the declaration was NOT filed and would have immediately amend the record or filed to amend in court and have had to serve all parties. Since the record needed to be changed. Had they done so, the birth record would have been cancelled out, and the fathers name on the birth record would have read unknown.

Additionally, had she been served and been given knowledge that any of this was going on, she would have appeared to contest the issue.

Plus, in the CAUCCJA it says that;

�� 3449. Service of petition and order;

Except as otherwise provided in Section 3451, the petition and order shall be served, by any method authorized by the law of this state, upon the respondent and any person who has physical custody of the child.�

Respondent being the key word, since the petitioner of the case is DCSS and both mother and named dad are listed as respondent no. 1 and 2.

Then where it also discusses service on each respondent to a proceeding in section (c) saying in pertinent part that;

�(C) The respondent was entitled to notice, but notice was not given in accordance with the standards of Section 3408, in the proceedings before the court that issued the order for which enforcement is sought.�

Does it make more sense now attorney

United States | California | 95212 | Family Law, Divorce, Child Custody and Adoption

4/16/14, 6:17 pm

Answer (1 of 1)

None of what you posted makes any sense. The Department of Child Support Services files paternity actions and enforces child support orders of behalf of the mother, who is receiving public welfare assistance and has designated the respondent as the father. They don't also have to serve the mother, because the mother is already known.

Initial questions:

What happens if there was an entry of judgement where the Mother was not served any summons or complaint regarding paternity in California.

The pair did scribe a Declaration of paternity, at birth. However, the Parental opportunity program decided it was -** Void Abinitio**- due to it not being properly filled out. Thus returned it but it was not received by the parents. Then later, when the birth record was created and everything was on paper except the POP's declaration which was only signed and not filed legally with the state, the DCSS filed a summons and complaint serving only the alleged Father, and not mother. No proof of service is on file. Then later after 4 months they got dad served, still not having served mom, they obtained a judgement ordering paternity to the respondent father and then added the mother to the issue.

18 months following, the mother found out of the case, and filed for a set aside asking for the court to also order DNA testing for both child and alleged dad. The mom did properly serve, and properly file proof of service on the alleged father and the DCSS.

When the hearing came up, the order for set aside was issue and the DNA testing also due to failure of DCSS (dept. of child support services) and the respondent (who at time of service was unrepresented), failed to appear.

Then 15 days following Mother obtained a letter from the court that the DNA testing and set aside orders issued, are now rescinded and a new hearing shall be held.

At that hearing the issues were re-heard, and alleged dad got temp. custody, (court claimed due to enrolling in school), the DNA test was revoked, and so was the set aside claiming child was too old to allow. Father failed to appear, but had an attorney appear for him, and the CA Dept. Child Supp. Services (DCSS) sent an attorney to argue. (Which as you know, generally doesn't happen.)

Question:

1. Does mother need be served by the Dept. of Child Support Services a summons and complaint prior to hearing to supply her with an opportunity to be heard?

2. Is it legal that they claimed that she received a letter by mail regarding the orders a few days prior to six months time following the hearing that they claim was mailed to a house in a city where she NEVER lived in the location and had not lived in that city in over 18 years, again and never lived at that address.

(Who ever did get the letter by mail failed to return it to sender.)

3. Should I file a motion to void proceeding due to lack of personal or proper service on me, MOM. On grounds that they failed to supply due process and etc. as cited here below?

(1) lack of proper service on Mother deprived Trial Court of personal jurisdiction and renders any judgment automatically void;

(2) Trial Court retains inherent power to vacate default judgment that is void for lack of due process;

(3) California Family Code Section 3691 does not preempt where Trial Court failed to acquire personal jurisdiction over litigant because of fraudulent service (whether intentional or unintentional);

(4) D.C.S.S. failed to properly inquire into underlying facts before pursuing its complaint against Mother;

(5) there is no evidence that Mother acquiesced in default judgment or treated it as enforceable;

(6) Trial Court�s finding regarding California Code of Civil Procedure Section 583.210 was erroneous because dismissal was mandatory due to improper service; and

(7) default judgment was void as violating the fundamental due process rights of Mother since he was never served with the Summons and Complaint.

and if so, what do i name the complaint under the case number? And is it going to fly?

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