Appeal from a judgment of the Superior Court of Orange County, Robert D. Monarch, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6.) Reversed and remanded with directions. (Super. Ct. Nos. 07P000228 & 07P000341).
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
Lauren W. (mother) appeals from a paternity judgment finding Kevin Q. is the father of her son Matthew W. (the child), even though Brent A., the child‟s biological father, signed a voluntary declaration of paternity.*fn1 We conclude that because the voluntary declaration of paternity signed by Brent functioned as a judgment of paternity under Family Code section 7573, the court‟s ruling must be reversed.*fn2
At a February 8, 2008 paternity hearing, Kevin, mother, Brent, and the child, through counsel, waived an evidentiary hearing and agreed the court could base its decision on "the factual matters set forth in the file," including declarations and exhibits that were inadmissible under the rules of evidence. No oral testimony was presented at the hearing. Accordingly, the following recitation of facts is taken from reporter‟s transcripts and documents filed with the lower court, including declarations and exhibits.
Kevin, an attorney who practices family law in Orange County, and mother "started a relationship in February of 2003." Mother and her first son moved in with Kevin for part of 2003, then moved out, but "resumed living with" Kevin at some point when mother was pregnant with her second son, the child.
The child was born in 2005. When the child was 20 months old, mother and the boys moved out of Kevin‟s home.
One month later, Kevin petitioned under section 7630 to establish a parental relationship as the child‟s presumed father, seeking legal and physical custody of, and reasonable visitation with, the child. He declared that: (1) he always knew he was not the child‟s biological father; (2) he "took the child into [his] own home[,] held him out as [his] own child and . . . paid all of [the child‟s] expenses from the time [mother] became pregnant up until she vacated [Kevin‟s] home"; (3) Kevin desired custody of the child because he had "been a primary caretaker and under all circumstances [was] the person . . . most likely to allow [the child] frequent and continuing contact with [mother], who [had] restricted [Kevin‟s] time with [the child]"; (4) Kevin believed it would be in the child‟s best interests for the court to award him custody of the child.
The next month, Kevin filed an order to show cause requesting custody of and visitation with the child pending a hearing. He also requested the court to order mandatory drug testing for mother and to appoint a mental health professional to perform a custody evaluation. Kevin declared the following. Early in mother‟s pregnancy with the child, Kevin and mother consulted a doctor about a possible miscarriage and together decided mother "should have the child if it was medically possible." Mother and her first son then moved in with Kevin. Kevin‟s friends and relatives attended a baby shower for mother; no one was told that Kevin was not the biological father. Kevin went to the hospital twice (once directly from work) when mother had false labor pains. Kevin was present at the child‟s delivery "and cut the umbilical cord." Upon the child‟s birth, Kevin took the baby into his home and openly held the child out as his natural son. "[The child‟s] birth announcement [stating] the [Q.] family proudly introduces their new son and brother" was "sent out to all friends and family."
Kevin also declared his parents visited the child, believing him to be their grandson. Kevin paid for medical insurance for the child, claimed him as a tax dependent, paid all the child‟s medical bills, and was "financially responsible for everything for him." Kevin bought a larger home near a park and moved the family there. He took care of the boys on some Saturdays and came home from work early on some weeknights to care for them. The foursome‟s 2005 Christmas card bore a photograph of Kevin, mother, and the boys. They attended holiday and other gatherings with Kevin‟s relatives. Kevin attended some of the child‟s doctor appointments and a surgery. He took the "boys to the park one to two times a day on the weekends" and some evenings.
Kevin further declared that during the time the family lived with Kevin, mother did not participate "in the day to day activities of caring for either boy." She was sometimes in school and had some night classes. Kevin fed them breakfast on weekdays, took the older boy to school, and went to work. A nanny took care of the boys during the day four days a week. A different nanny came "on Fridays to care for [the child] because [mother] said she was not capable of doing so." When Kevin could no longer sustain the expense of the Friday nanny, he instead came home from work by 1:00 p.m. on Fridays to accommodate mother.
Finally, Kevin declared in support of his order to show cause that mother suffered from emotional and health problems, alcoholism and drug abuse (including prescription drugs), and a poor driving record. Kevin and mother‟s relationship was destroyed in July 2006 when mother used cocaine, seriously damaged a friend‟s bathroom, and was taken to Hoag Hospital for evaluation as a dangerous or gravely disabled person under Welfare and Institutions Code section 5150.
Mother opposed Kevin‟s request for an ex parte custody order and argued there was no risk of immediate harm to the child. She had received telephonic notice of the ex parte hearing, but had never been served with Kevin‟s section 7630 petition to establish a parental relationship.*fn3 She declared the following. "[E]arly on," she told her friends and family that the child was not Kevin‟s son. She refused Kevin‟s "ultimatum [to] put his name on [the child‟s] birth certificate or he would not marry [her]." Mother did not approve the birth announcement before it was sent out. In 2006 she sent out Christmas cards with a photograph of only her and her sons. She encouraged Kevin "to tell his parents the truth."
Mother further declared that the child‟s biological father, whose identity was then confidential and whose paternity had been confirmed by DNA tests, had agreed that mother could have full custody of the child. The biological father was "not  involved" because he knew mother was a good mother. Kevin "usually worked [from] 7:30 am to 7:00 pm on Monday through Friday and one day on the weekend." He had hit mother and spanked her older son, and frequently smoked marijuana.
Mother also declared that during the last 13 months she lived in Kevin‟s house, she suffered from a painful medical condition that required her to take prescription drugs. Mother "never used cocaine" and believed "someone, maybe [Kevin], drugged [her] in July" 2006. She believed Kevin had "planned since [she] was pregnant to try to take [her] child because [Kevin] is sterile and says he cannot adopt" due to legal problems. In December 2006, mother graduated with a masters degree in psychology. She was currently "a stay at home mother with both [her] children," her father helped her financially, and she lived "in a three bedroom, two bath home with a back yard." She played "with the children and [took] them to the park, to the pool for swimming lessons, and to tennis lessons." She continued to hire the nanny "for extra help." Mother had allowed Kevin a few visits with the child, "but then [the child] began crying at exchanges and was returned with dirty diapers and sometimes hungry."
In support of mother, both the child‟s nanny and mother‟s sister declared she was a good mother. They had never seen mother drink alcohol or take illegal drugs. They had observed Kevin to smoke or appear to be under the influence of marijuana. Mother‟s sister declared mother took care of the children‟s daily needs and took them to the park and to swimming and tennis lessons. She declared Kevin had hit mother, the child, and mother‟s oldest son.
At an ex parte hearing on Kevin‟s order to show cause, Judge Linda Miller found Kevin had "made a prima facie showing that he is a presumptive father of [the child]," and granted him visitation with the child on alternate weekends and every Wednesday overnight. The court ordered both parties to undergo drug testing with Dr. Soltani and a custody evaluation with an agreed-upon expert, all at Kevin‟s expense. A hearing on Kevin‟s order to show cause was scheduled for July 2007.
But two days later, mother filed an order to show cause requesting that the ex parte orders be set aside or stayed pending a hearing. She also requested a hearing on the ex parte orders within "20 days as required." She declared the child had "never been away from [her] for more than a night;" Kevin had not spent "a lot of time with [the child] when [they] were together"; and the child had never called Kevin "dad." Mother‟s counsel declared that mother‟s due process rights had been violated at Kevin‟s ex parte hearing. The attorney declared that Judge Miller met with the lawyers in chambers and mentioned a possible conflict because the judge knew Kevin "professionally as an attorney," although not personally. Judge Miller "stated that she had not read the pleadings, but found that [Kevin] had made a prima facie case as presumed father because [the judge] recalled [Kevin] coming into the courtroom and showing pictures of the minor to her and her staff." Judge Miller "went on to say that the whole courthouse believed the child was [Kevin‟s]."
The court set a hearing on mother‟s order to show cause for April 30, 2007, and advanced the hearing on Kevin‟s order to show cause to the same date.
On April 30, 2007, mother filed a response to Kevin‟s petition to establish a parental relationship, stating that the child‟s biological father had filed a voluntary declaration of paternity. Attached to mother‟s response was a copy of an April 25, 2007 voluntary declaration of paternity signed and dated by Brent, mother, and a witness at the Department of Child Support Services at 1055 N. Main Street, Santa Ana. Also attached was a copy of an Application to Amend a Birth Record and Acknowledgment of Paternity/Parentage signed and dated by Brent and mother.
That same day, Brent filed a declaration as follows. He was the child‟s biological father as proved by a DNA test. He was married at the time mother became pregnant with the child and "did not want to get [his] family involved." Brent "agreed to limited contact with [mother] but told her [he] would always support her and the baby." He paid her "$500 a month in cash during the pregnancy" and $300 child support after the child was born. He met mother "and [the ...