The famous Michael Jackson song from 1982 called “Billy Jean” lays out the typical parentage situation where a mother accuses a man as being (“the one”) the biological father of her child and demands that he steps up to the responsibility of fatherhood or at the least pay child support. In that song, Michael Jackson was being a cool character and simply denies being the father of the child. This can be easily resolved by denying parentage and requesting a genetic test in response to a parentage action by mom.
However, some men are a bit more honorable than Michael Jackson in “Billy Jean” in that they actually believe that they are the biological dad and actually steps up to the responsibility of being a father by admitting that they are the biological father the child. They do this by signing the VDOP (voluntary declaration of parentage) and having their name stated as the father in the birth certificate of the child.
What is a VDOP? A voluntary declaration of parentage (VDOP) is a legal document that establishes paternity without the need for a court order. The child of a woman and a man executing a declaration of paternity under this chapter is conclusively presumed to be the man’s child. The presumption under this section has the same force and effect as the presumption under Section 7540. Family Code Section 7581(a). It is typically signed by the mother and the man who believes himself to be the father of the child. Once signed, the VDOP has the same legal effect as a court judgment establishing paternity.
The real complication occurs when years later dad finds out that he is in fact not the biological father of the child. A common situation that comes about is when he notices that the child does not resemble him at all as the child is growing up. Another situation that triggers this suspicion is mom accidentally telling the child that dad is not actually your dad or mom telling dad that your child is not your child during a heated argument. This suspicion would trigger dad to obtain a non-ordered dna test of the child and find out that there is 0% probability that he is the father based on the genetic test.
Once dad finds out that he is not the biological father, the big question is “what is dad to do in order to undo the VDOP that he signed and get himself off the hook from child support and parental responsibility.”
One way is to rescind the VDOP but this would require mom’s cooperation and requires that it be done within a short statutory time period. Family Code Section 7575(a) provides that “Either parent may rescind the voluntary declaration of parentage 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 parents, 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.”
If mom refuses to cooperate in rescinding the VDOP or if it is beyond the 60 day statutory period, then a VDOP may be set aside in two circumstances:
- If the man who signed the declaration is not the biological father of the child.
- If the declaration was signed as a result of fraud, duress, or material mistake of fact.
If the man who signed the declaration is not the biological father of the child.
To set aside a VDOP on the grounds of non-paternity, the person must show that they are not the biological father of the child. This can be done by opening a parentage case and filing a motion for a court ordered genetic testing. Family Code 7581 (d) provides that “The presumption established by this section may be rebutted by any person by requesting genetic testing pursuant to Chapter 2 (commencing with Section 7550). The notice of motion for genetic testing pursuant to this section shall be supported by a declaration under oath submitted by the moving party stating the factual basis for placing the issue of paternity before the court. The notice of motion for genetic testing shall be made within three years from the date of execution of the declaration by the attesting father, or by the attesting mother, whichever signature is later. Cal Fam Code § 7581
If the declaration was signed as a result of fraud, duress, or material mistake of fact
Dad can file a proceeding and a motion to set aside the VDOP within 2 years of the filing of the VDOP with the state. Family Code Section 7576 (a) provides that “ After the period for rescission provided in Section 7575 expires, but not later than two years after the effective date provided in subdivision (c) of Section 7573 of a voluntary declaration of parentage, a signatory of the voluntary declaration of parentage may commence a proceeding to challenge the declaration on the basis of fraud, duress, or material mistake of fact. (b) The limitations period provided in subdivision (a) shall not apply if the voluntary declaration of parentage is void under Section 7573.5.
To set aside a VDOP on the grounds of fraud, duress, or material mistake of fact, the person must show that they were misled or coerced into signing the declaration. For example, a person may be able to set aside a VDOP if they were tricked into signing it or if they were not aware of all of the consequences of signing it.
Setting aside a VDOP can be a complex process. It is important to consult with an experienced family law attorney to discuss your specific situation and to ensure that you are following all of the necessary procedures.
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APC This article is not a solicitation.
Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist with extensive trial experience. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He was a former CPA prior to law practice. He is Managing Partner of the LAW OFFICES OF KENNETH REYES, APC and Managing Partner of REYES CAPITAL MANAGEMENT LLC. located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail kenneth@kenreyeslaw.com or visit our website at Kenreyeslaw.com