Legal Question in Family Law in California

Most likely not. For the father of record to be on record, both the mother and the father of record had to sign the declaration of paternity if they were not married. That means the mother committed perjury in signing a declaration that the father of record, and not the bio father, was the real bio father. And then she did nothing to correct it for 8 years until now suddenly she wants to switch fathers? The courts do not look kindly on that, especially in the face of an official 60-day limit on revoking the declaration. The only thing going for her is that the courts will usually bend the rules if it is clearly in the interests of the child. So a good lawyer with all the facts and evidence MIGHT be able to persuade a court to do what's best for the child and find some loop-hole in the law to allow the paternity to be set aside. Even then,.however, there would have to be another whole proceeding to have the actual bio father pulled into court and ordered to take the DNA test. The bottom line is that the mother has created a real mess by declaring the wrong man was the father and then waiting 8 years to do anything about it. Given that the man has not paid any support and has not seen the child for 3 years, the mother's better option may be to seek termination of parental rights in the father of record and just go it alone; leave the bio dad out of it.

I agree with Mr. McCormick on the 60 day time limit on a voluntary rescission of a voluntary declaration of paternity (VDOP) by the parents, but there is a different period to move to set aside a VDOP by only one parent.

The court may set aside the Voluntary Declaration of Paternity based on genetic testing, unless it finds that setting aside the Voluntary Declaration of Paternity is not in the best interests of the child. (Fam. Code, � 7575, subd. (b)(1).)

The time limit to do this, however, is two (2) years from the birth of the child. �The notice of motion for genetic tests under this section may be filed not later than two years from the date of the child's birth by a local child support agency, the mother, the man who signed the voluntary declaration as the child's father, or in an action to determine the existence or nonexistence of the father and child relationship pursuant to Section 7630 or in any action to establish an order for child custody, visitation, or child support based upon the voluntary declaration of paternity.� (Fam. Code, � 7575, subd. (b)(3).)