• Order genetic testing, even though the paternity judgment was already entered,
• Overturn a paternity/support judgment,
• Stop monthly child support, and
• Forgive any remaining child support due.

The legislation that authorized the process is known as the Paternity Disestablishment Bill (AB 252) and added Family Code Section 7646 to the California Family Code. Not all judgments qualify for a Section 7646 Motion. For those that do, the NCP is entitled to Genetic Testing (G/T) if a test has not already been done.

1. Only certain individuals can make a request of the court to overturn (or vacate) a paternity judgment. These individuals are:

• The man named in the judgment as the father
• The woman named in the judgment as the mother
• The child named in the judgment, or
• The legal representative of the people mentioned above.

2. In order to ask the court to overturn (or vacate) a paternity judgment, a person must:

• File a motion with the court as described in Family Code Section 7646. The motion must include a notice that the motion has been filed, a declaration, and proof of service.

3. The individual who filed a 7646 motion must serve a copy to the other people involved in the case. Those individuals are:

• The women named in the judgment as the mother (or the previously established mother (PEM)
• The man named in the judgment as the father (or the previously established father (PEF)
• The local child support agency (LCSA), and
• The child’s guardian ad litem (GAL) if the child has a GAL

4. Family Code Section 7646 does not cover all judgments that deal with paternity. Section 7646 does not apply to:

• Judgments/orders entered by a court in another state
• Orders which do not establish paternity
• Divorce judgments
• Judgments of legal separation
• Nullity judgments
• Judgments concerning a child conceived by artificial insemination
• Judgments concerning a child presumed to be a child of a marriage; and
• Judgments which are based on a genetic test which did not exclude the PEF as the biological father.

5. A 7646 motion must be filed within certain time frames. The time frame depends on the type of judgment involved.

• Paternity Declaration Cases: If the judgment is based on a voluntary declaration of paternity, (also called a POP declaration), then the motion must be filed within 2 years from the date the child was born.

• Paternity judgments (Default & Non-Default): If the paternity judgment was established where the PEF was determined to be the legal father (without genetic testing having been conducted), then the motion must be filed the sooner of the following two circumstances:  (a) within 2 years from the date that the previously established father (PEF) knew or should have known of the paternity judgment;  or (b) within 2 years from the date that the PEF knew or should have known of the paternity action filed against him.

Note: A judgment is entered by default when the respondent or defendant in the case did not file an answer or response to court papers or did not appear in court before the court entered the judgment. Non-default judgments are judgments entered after the respondent or defendant did one of the following: filed an answer or response with the court, appeared in court, or signed an agreement concerning paternity/support.

6. A declaration must be included with the motion for Paternity Disestablishment. The person filling the motion (moving party) must make certain statements. He/she must say:

• that he or she believes that the previously established father (PEF) is not the biological father of the child named in the judgment
• the reasons for his or her belief about parentage
• that he or she wants his or her motion to be granted, AND
• that the marital presumption does not apply to the child named in the judgment.

Note: Generally, the marital presumption applies to children conceived during the time a married couple lived together and the husband was able to father a child (not impotent or sterile).

7. The 7646 motion must also include certain information about people related to the paternity/support action if the person filing the motion knows the information. The person filing the motion must give:

• the legal name of the child, the age of the child, the child’s home address and the county in which the child lives; and
• the name of, the mailing addresses of, the county of residence of, and if deceased, the date of death for the following people:
• previously established mother (PEM), previously established father (PEF)
• biological mother, biological father
• if applicable, the child’s guardian or person having physical custody of the child
• if applicable, the child’s guardian ad litem (GAL).

8. It is not a requirement for the person filing the motion to have genetic test results before he or she files a 7646 motion. In fact, he or she can file the motion and ask for genetic testing later.
   
   
9. It is also not a requirement to file a motion to go to court to get genetic testing.

• If time permits prior to the court hearing, the local child support agency (LCSA) can test the PEM, PEF and the child before the court date if:
• the motion is filed in the proper county and contains the information listed in steps 6 and 7 above.

Note: once a proper motion is filed, and the person filing the motion asks the court for a genetic test, the court must order genetic testing. Or, if the person filing the motion does not ask for genetic testing, the court can order the testing on its own if the test would assist the court in determining the biological father of the child.

1. Who pays for the genetic testing?
• In those cases being enforced by a local child support agency, the local child support agency pays for the genetic testing.
2. What happens if the local child support agency (LCSA) orders a person to undergo genetic testing and that person does not want to?
• In those cases being enforced by a local child support agency, the agency can order genetic testing. The person objecting to the testing can file a motion with the court stating the reasons why he/she believes testing should not be conducted. The court will then decide if testing should be conducted.
• If a person receives the LCSA’ s order for testing, fails to object to the testing (by filing a motion) and fails to submit to the testing, the court can decide the 7646 motion against that person or enforce the LCSA’ s order for genetic testing.
3. What happens after the genetic testing is completed?
• If the results of the genetic tests show that the previously established father (PEF) is not the biological father of the child, the court can grant the Paternity Disestablishment motion, stop the PEF’s monthly child support obligation and eliminate the PEF’s arrears. However, if there is a good reason, the court can also deny the motion and keep the paternity/support judgment in place.
4. If a 7646 motion is granted will the PEF be reimbursed for child support payments he made under the judgment?
• No. If the court grants a 7646 motion, the PEF is not entitled to a refund of any child support payment he made under the judgment.
5. If genetic testing results exclude a PEF as a child’s biological father, what things could the court consider to deny the 7646 motion?
• the age of child
• how much time has passed since the judgment was entered
• the PEF’s relationship with the child, if any
• the request of the PEF to continue his relationship with the child
• a notice from the biological father that he does not oppose the court continuing the relationship between child and the PEF
• the benefit or harm to the child in establishing biological parentage
• whether the conduct of the PEF has harmed the child’ s ability to identify or get support from the biological father; and
• any additional factors the court finds relevant.