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2011: How do You set Aside a Paternity Judgment in San Diego Superior Court?

In San Diego, there are many paternity cases. A paternity case is where a mother and father were not married at time of birth or conception. In San Diego Superior Court, either the father or mother can file a complaint to establish a paternal relationship. Under California law, if there is not a paternity judgment [either voluntary declaration of paternity such as at a hospital at birth or court ordered], then the father has no legal rights. To obtain these rights, the complaint to establish a paternal relationship must be filed in San Diego in the court house which has jurisdiction which is normally where the child has been residing for the past six months. In some cases, a paternity judgment is entered without consent of the father by default either in San Diego Family Law Court or in the San Diego Department of Child and Social Services. When this occurs, it is imperative if you contest paternity to immediately file a motion to set aside the judgment of paternity. Calling will not protect your rights.

Given the state of technology, a DNA test can be determinative of parentage. With the new technology and tests, a DNA test of father, mother and child can be obtained for under $500 with some private companies or through the County of San Diego. This can be ordered when the judgment for paternity is set aside for this purpose. The San Diego Superior Court Judges will accept the DNA test results either proving or disproving paternity.

New law in San Diego permits for challenging paternity judgments. The best procedure is to have the DNA test and results before filing for the set aside of the judgment but, given the time periods below, it is imperative to file immediately so if no DNA test results are available the filing should occur and the testing can be completed between the date of filing and date of hearing as the results can be obtained within 30 days. The motion to set aside must be filed within two years of the date on which the father who was established as the father knew or should have known of the paternity judgment. The Court looks to whichever date was first. The motion must also be filed within two years of the birth of the child if paternity was established then by a voluntary declaration of paternity. This is consistent with the two year rules. The question of when a father should have known of the paternity judgment is a factual one which may require testimony.

The Court can still deny the motion to set aside or vacate if the denial of the motion would be in the best interests of the child and the Court must state the findings for the basis of this denial on the record.

If you would like to contact us for a consultation or to hire an attorney, please feel free to call for an appointment.

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