Legal Question in Family Law in California

i just found out my son of 3 years is not mine. i found out through home dna kit. i signed his birth certificate at birth thinking he was mine but the mother and i were never together. i want to know how i can remove my name from his birth certificate.

Asked on 7/24/13, 12:23 pm

1 Answer from Attorneys

Anthony Roach Law Office of Anthony A. Roach

The birth certificate cannot be changed without a court order. A court order requires a paternity action in which the court declares you not to be the father. That is an uphill battle, and here is why.

The birth certificate is insignificant in and of itself. What I am concerned with is whether or not you signed a Voluntary Declaration of Paternity (VDOP). A properly signed VDOP has the same effect as a court order establishing paternity for the child, without anyone having to go to court. (Fam. Code, § 7573.)

“Either parent may rescind the voluntary declaration of paternity by filing a rescission form with the Department of Child Support Services within 60 days of the date of execution of the declaration by the attesting father or attesting mother, whichever signature is later, unless a court order for custody, visitation, or child support has been entered in an action in which the signatory seeking to rescind was a party.” (Fam. Code, § 7575, subd. (a).)

If you signed a VDOP three years ago, it is almost definitely too late to rescind it. The issue then is whether you can set it aside. There is a procedure for setting aside a VDOP, pursuant to Family Code, section 7575, but there is a two (2) year limitations period to do it.

“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).)

Home genetic testing kits are inadmissible in paternity actions. Under the Uniform Act on Blood Tests to Determine Paternity, the required tests must be performed by a laboratory approved by an accreditation body that has been approved by the Secretary of the United States Department of Health and Human Services. (Fam. Code, § 7552.)

Even assuming that you could timely file such an action now, I doubt the court would set aside a VDOP, even if genetic testing proved you were not the biological father, because you have probably formed a bond with the child.

I do suggest you speak at length with a competent family law attorney who is familiar with California's quirky laws on paternity. It may even help for you to bring my response that I have posted here.

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Answered on 7/24/13, 1:46 pm

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