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CAFC Impact Seen On Paternity Fraud Bill

CAFC was successful in getting SB 1333 (Ashburn) introduced to fix confusion regarding a recent law that was meant to allow genetic testing to disprove falsely alleged or incorrectly determined paternity. Based on the testimony of CAFC's Michael Robinson and others, we were successful getting the bill passed out of the Senate Judiciary Committee on March 25 on a 5-0 vote. As a result, the bill will likely be on a consent calendar from here on out.

Family Code section 7646 was established in 2004 by AB 242 (Jackson) to create a procedure to "disestablish" paternity based on genetic testing. Under that section, a court-ordered paternity judgment may be set aside or vacated upon a timely filed motion by, among others, the court-established father of a child if genetic testing indicates that he is not the biological father of the child. This usually happens when the mother contends that a man is the father, the man has no notice of the paternity action, and - in the absence of contradictory evidence - the court issues a default judgment that he must be the father.

This section contained specific time periods during which a father, whose paternity was established as a result of a default judgment, could file a motion to vacate the paternity judgment. AB 242 specifically provided that such a motion must be filed "within a two-year period commencing with the enactment of this section." However, confusion arose as to whether the allotted time period commenced at the time the statute was chaptered (September 24, 2004) or at the time it took effect (January 1, 2005). In addition, the Court of Appeal of California, Fifth Appellate District decided County of Fresno v. Celestino Sanchez (2005) 135 Cal.App.4th 15, issued an opinion that contained a third legal deadline of October 28, 2006. The October deadline was repeated in a letter issued by the Department of Child Support Services.

CAFC and Senator Ashburn believe that the two-year time period was intended to run from January 1, 2005 (the day the statute became effective) through December 31, 2006. Based on the conflicting rulings, however, there is now a discrepancy of approximately two to three months during which motions to vacate may have been wrongfully denied as being untimely filed.

SB 1333 would fix this problem. It would authorize the reconsideration of the denial of a motion if the following conditions are met:

(1) The motion was filed with the court between January 1, 2005, and December 31, 2006, inclusive.
(2) The motion was denied solely on the basis that it was untimely.
(3) The request for reconsideration of the motion is filed on or before December 31, 2008.

Correcting this problem will allow falsely named fathers to avoid the injustice of forcing individuals to pay child support for children who are not their biological children.