Reported / Citable
Background
Priscilla C. and Gianni V. obtained a confidential marriage license and were married approximately one year before the birth of Stella in October 2021. The day after Stella’s birth, Priscilla and Steven N., the child’s genetic father, signed a voluntary declaration of parentage (VDOP) under Family Code section 7573, in which Priscilla represented that she was unmarried. The VDOP listed Priscilla as the birth parent and Steven as the other parent.
Years later, Steven filed a petition for custody of two-year-old Stella based on the VDOP. Priscilla applied to set aside the VDOP as void, contending that under Family Code section 7573.5, a VDOP is void if at the time of execution another person is already a presumed parent under section 7611, subdivisions (a) or (b). She argued that her husband Gianni was a presumed parent because they were married at the time of Stella’s birth, and supported the application with a copy of the confidential marriage certificate.
Steven opposed the application, arguing that Priscilla and Gianni’s confidential marriage was invalid because the couple had not been “living together as spouses” before the marriage as required by Family Code section 500 for a confidential marriage. The trial court agreed that the marriage was invalid and denied Priscilla’s application. Priscilla appealed.
The Court’s Holding
The Fourth District Court of Appeal, Division One, treated the appeal as a writ petition and granted it, directing the trial court to vacate its order and grant Priscilla’s application to set aside the VDOP. The court explained that the trial court framed the issue too narrowly. Even if the confidential marriage between Priscilla and Gianni was technically invalid for failure to satisfy the section 500 cohabitation prerequisite, that did not end the analysis under Family Code section 7611, subdivision (b).
Section 7611, subdivision (b) provides that a person may be a presumed parent if the person attempted to marry the birth mother by a marriage solemnized in apparent compliance with the law, even if the attempted marriage is or could be declared invalid. The undisputed evidence established that Priscilla and Gianni obtained a confidential marriage license and were married before Stella’s birth in apparent compliance with California law. Even if the marriage could be declared invalid for failure to satisfy the cohabitation requirement, the attempted marriage was sufficient to make Gianni a presumed parent under subdivision (b) when Stella was born.
Because Gianni was a presumed parent under section 7611, subdivision (b) at the time Priscilla and Steven signed the VDOP, the VDOP was void as a matter of law under Family Code section 7573.5, subdivision (a)(1). The court rejected Steven’s argument that recognizing the attempted marriage would excuse perjury, noting that section 7611 expressly contemplates attempted marriages that may be invalid and that perjury concerns are addressed through other criminal statutes.
Key Takeaways
- A voluntary declaration of parentage signed by the birth mother and a non-spouse is void if at the time of execution a third person is a presumed parent under Family Code section 7611, subdivisions (a) or (b).
- An attempted marriage solemnized in apparent compliance with the law, even if it could be declared invalid, can give rise to presumed parent status under section 7611, subdivision (b).
- The validity or invalidity of a confidential marriage under Family Code section 500’s cohabitation requirement does not necessarily defeat presumed parent status under section 7611, subdivision (b).
- Family courts should consider both subdivisions (a) and (b) of section 7611 when evaluating whether a VDOP is void on the ground that another person is a presumed parent.
- Concerns about misrepresentations in obtaining a confidential marriage are addressed through criminal perjury and false instrument statutes, not by invalidating presumed parent status.
Why It Matters
This decision is an important guide for family courts evaluating disputes over voluntary declarations of parentage when the birth mother had any kind of marriage or attempted marriage to a third party at the time of the child’s birth. The opinion emphasizes that section 7611 is a robust framework for recognizing presumed parent status that does not require a perfectly valid marriage.
For family law practitioners, the case is a reminder to investigate the birth mother’s marital status carefully before executing a VDOP. Even an attempted but technically invalid marriage can be enough to render a VDOP void, leaving the genetic father without an established parental relationship through the VDOP process. Practitioners representing genetic fathers may need to pursue parentage through a court proceeding, and may need to address the presumed parent status of the spouse or attempted spouse first.