APPEAL from a judgment of the Superior Court for the County of Los Angeles. John A. Slawson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.). (Los Angeles County Super. Ct. No. YF 004366)
The opinion of the court was delivered by: Grimes, J.
CERTIFIED FOR PUBLICATION
This is a paternity action in which the court found two men to be presumed fathers of the child, and concluded that the biological father's presumption of paternity, under the particular circumstances, was controlling, as it was "the presumption which on the facts [was] founded on the weightier considerations of policy and logic . . . ." (Fam. Code, § 7612, subd. (b).) The mother and the other presumed father appeal this ruling. They also assert the biological father had no standing to bring the paternity action in the first place because he was not a presumed father when he filed the suit, and they further contend the trial court erred when it set aside a voluntary declaration of paternity by the other presumed father.
On August 11, 2010, J.R. (plaintiff) filed a petition, in propria persona, to establish a parental relationship with a child born four months earlier, on April 12, 2010. Plaintiff's petition sought visitation and asked that the child's surname be changed to plaintiff's last name and that plaintiff be named as the father on the child's birth certificate. Plaintiff and the mother of the child had an intimate sexual relationship which, according to plaintiff, began in December 2003. The mother said it began (and ended) in July 2009, but in any event, the parties were intimate in July 2009, when the child was conceived. At that time, plaintiff was married to another woman with whom he had two children, and the mother was living with and having sexual relations with R.M., who was named as father on the child's birth certificate. The child's mother had been living with R.M. since 2005.
Mother discovered she was pregnant in August 2009. She thought R.M. was the father. She told plaintiff she was pregnant three months later. In late November 2009, she and plaintiff had testing done at the University of California at Los Angeles to determine if plaintiff was the father of the child. The results, received in December 2009, showed plaintiff was the father. Mother discussed the results with plaintiff in early January 2010, but she continued to believe R.M. was the father, because plaintiff told her "the child could not be his because he had had an operation" and that the tests "weren't always accurate until the child was born." Mother said that plaintiff tried to speak with her during the two months after they learned of the test results, but she told him not to call her anymore and did not respond to his phone calls. Mother changed her telephone number and did not give her new number to plaintiff.
The child was born on April 12, 2010. R.M. thought he was the biological father of the child. R.M. was named as the father on the birth certificate, and mother and R.M. signed a voluntary declaration of paternity at the hospital on April 12, 2010. The declaration contains, among other things, a statement by R.M. that he is the biological father of the child, and a statement by the mother that "the man who has signed the voluntary declaration of paternity is the only possible father . . . ." (Fam. Code, § 7574, subd. (b)(5).) (All further statutory references are to the Family Code.) The child has lived with R.M. and mother since his birth, and R.M. has always treated him as his son.
Several months after the child's birth, R.M. learned about the DNA test results, from plaintiff's wife. R.M. confronted mother, who told him that the DNA test results showed that plaintiff was the biological father. R.M. was upset and angry with mother. When R.M. was asked if he would have signed the voluntary declaration of paternity if he had known the DNA test results showed plaintiff was the father, he said that he "would have waited until the child was born and then done a test with my blood after he was born."
The paternity action plaintiff filed in August 2010 developed as follows.
At the first hearing, on September 30, 2010, plaintiff said mother knew he was the biological father because of the DNA test, and asked for an order allowing him to see the child. Mother took the position that the voluntary declaration of paternity established R.M. was the father, and had the effect of a judgment, so that unless it was set aside in a separate action, plaintiff could not obtain any visitation or custody orders. Mother did not accept the validity of the DNA test results and wanted another DNA test now that the child was born. R.M. said he believed that mother had tricked him and lied to him about whether he was the father, but he loved the boy, was with the mother throughout her pregnancy and at the child's birth, and that he was the legal father of the boy.
The court ruled plaintiff had standing to bring the paternity petition and obtain orders, and the court had jurisdiction to make orders. The court made no temporary visitation orders that day, but appointed counsel for the child. The court said that plaintiff could see the child soon, and the first meetings would be at the offices of counsel for the child.
Mother and R.M. married on October 22, 2010.
On November 12, 2010, the child's counsel filed his report. Counsel conducted lengthy interviews of mother, R.M., plaintiff, and plaintiff's wife, and recommended that the court grant plaintiff's petition and award joint legal custody to plaintiff and mother, with primary physical custody to mother and visitation to plaintiff.
At the second hearing, on November 16, 2010, the parties stipulated to various matters, which became temporary orders of the court. The stipulation and orders included shared physical custody (with plaintiff having custody at stated times on specified Wednesdays and Saturdays) and an agreement to further DNA tests for R.M., the child, and plaintiff.
At the third hearing, on January 10, 2011, mother moved to vacate the order under which the parties stipulated to paternity testing, claiming plaintiff had no standing to seek DNA testing. The motion was denied, and mother was ordered to comply with the previous stipulation and order for DNA testing.
On May 4, 2011, plaintiff moved to set aside R.M.'s voluntary declaration of paternity, on the ground mother "committed perjury" when she signed the declaration stating no other person could be the biological father, and on the ground that the blood tests after birth showed R.M. was not the biological father.
Trial began in June 2011 on the validity of R.M.'s voluntary declaration of paternity, and continued for several days until July 1, when the court found the voluntary declaration was not valid and did not establish paternity. The court reasoned that the voluntary declaration of paternity was invalid because the mother declared under penalty of perjury facts she knew were untrue, ...