ORIGINAL PROCEEDINGS; petition for writ of supersedeas, mandate and/or prohibition. L. Jackson Lucky, IV, Judge. Petition granted. (Super. Ct. No. RID225252).
The opinion of the court was delivered by: McKINSTER J.
CERTIFIED FOR PUBLICATION
In granting this petition, we hold that the trial court erred when it ordered genetic testing in a paternity action when real party in interest had no standing as a presumed father other than a voluntary declaration of paternity that was executed and subsequently rescinded by a married woman. When the trial court granted the motion to set aside the declaration, it should have found that the declaration was void and had no effect. Accordingly, we grant the petition for writ of mandate brought by the married couple to vacate the order for genetic testing.*fn1
FACTUAL AND PROCEDURAL BACKGROUND
This is a paternity action involving a married couple, who will be referred to as petitioners or husband and wife,*fn2 and the wife's former lover, S.G.
Husband and wife are from China where they first married. They divorced in Riverside in September 2001, but reconciled and remarried in 2002.
Wife became pregnant in 2005 and gave birth to a daughter, A. At the time wife became pregnant, she and husband were living apart during the work week but claim that they spent the weekends together. Wife had an affair with S.G. When wife became pregnant, she concealed this fact from husband. She says that on one occasion husband commented that she felt chubby and asked her whether she was pregnant. Wife denied she was, and claims she did so because she felt guilty about the affair. Wife separated from husband prior to the child's birth.
Wife also admits that she told S.G. about her pregnancy, and that he responded by pressuring her to have an abortion. She claims their affair ended after this disclosure. When she did give birth, she called S.G., who came with his mother to the hospital.
Wife and S.G. executed a voluntary declaration of paternity or POP (Paternity Opportunity Program) declaration about 90 minutes after the birth. She does not have a good command of English and uses an electronic translator, but she did not have this device with her in the hospital and did not understand the explanation about the form given by the hospital personnel. In fact, the hospital gave her an obsolete form because in April 2006 the State Department of Child Support Services issued a revised form that expressly and repeatedly states that the procedure is only available to unmarried mothers.
Within 60 days, wife executed a rescission of the declaration after using her translator to figure out what it meant. S.G. admits receiving this rescission, although the proof of service is defective.
Two weeks after A. was born, husband learned of her birth. He went to see her and husband and wife reconciled. Husband has accepted A. as his daughter. Husband and wife have lived together since then, along with the child, and a father-daughter relationship has developed between husband and A. Initially, the couple allowed S.G. to visit A. twice a month for two hours in their home. Husband became dissatisfied with this situation; they consulted a lawyer who advised them that they did not have to allow this. Husband and wife refused S.G. further visits in June 2008.
In May 2008, S.G. filed a petition to establish paternity and requested genetic testing. If it is determined he is the biological father, then he seeks visitation as well as support.
Wife responded to S.G.'s action with a motion to quash the proceedings and a motion to set aside the POP. The trial court denied the former, but granted the latter under Family Code*fn3 section 7575, subdivision (c)(1). In September 2008, the trial ...