County of Orange v. Superior Court

Introduction

The Orange County Department of Child Support Services (the Department) appealed from an order for genetic testing issued pursuant to Family Code section 7575. (All further statutory references are to the Family Code, unless otherwise noted.)

As explained post, we treat the appeal as a petition for writ of mandate, and grant the petition. The order was issued preliminarily to the court’s ruling on a motion to set aside a paternity judgment based on a voluntary declaration of paternity. The motion to set aside was filed more than two years after the child’s birth, and was therefore untimely under sections 7646, subdivision (a)(2) and 7575, subdivision (b). There was no extrinsic fraud in this case which would permit the trial court, using its equity powers, to set aside the paternity declaration despite its untimeliness. The trial court could not set aside the paternity judgment and therefore abused its discretion by ordering genetic testing for the purpose of deciding whether to set aside the judgment.

Statement of Facts and Procedural History

Kameron E. was bom in November 2000. Jason M. Rothert and Elicia E. signed a paternity declaration two days after…