[Resource] Voluntary Declaration of Parentage: Is it for you?
By: Amira Hasenbush, Esq.
First a little bit of history. For many years, states have had a voluntary declaration of paternity form. These were forms that hospitals have been encouraged (i.e. paid small sums by the government) to have biological fathers sign when their children are born to unmarried mothers. That way, if Dad ever runs off and stops helping take care of kiddo, the state can go after him for child support. The voluntary declaration of paternity is supposed to be given the force and effect of a judgment, and therefore (with limited exceptions), Dad can’t later argue that he’s not Dad and demand blood tests or other proof of his biological or legal paternity. (It also helps protect Dad’s legal parentage rights, but the state wasn’t really all that concerned with that part of it.)
“...it’s certainly better than nothing. But all things being equal, I would always suggest a parentage or adoption judgment to fully protect you. ”
At the same time, lesbian and other couples have wanted to use the same forms to protect the rights of the intended parent who did not give birth. And thankfully, in 2020, the California legislature changed the law to allow for just that. So, now, two categories of people can sign voluntary declarations of parentage:
Biological fathers of children born to unmarried women (the same as what has always been the case)
Intended co-parents of children born via assisted reproduction.[1] Here are a few examples of the types of folks who may want to sign it under the new law:
The wife of a woman who gave birth to their child, regardless of whose eggs were used
The egg-providing non-marital partner of a woman who gave birth as a result of reciprocal IVF
The trans husband or non-marital partner of a cisgender woman who gave birth using donor sperm
If the co-parent signs the form at the hospital when the baby is born, that person should be put on the birth certificate from birth. And if the person signs the form later (assuming this is not a three-or-more-parent or other complicated scenario), then the birth certificate can be amended to add the signor as a parent.
Now, these forms are a great way to provide further protection – and what’s more, they are free to fill out! So, what’s the catch? Well, as you know if you’ve been reading my other blog posts, an administrative document is not protected under the United States Constitution in the way that a judgment is, so birth certificates do not provide protection across state lines the way that adoption or parentage judgments do. So, what about parentage declarations? Well, according to the law itself, a valid voluntary declaration of parentage “is equivalent to a judgment of parentage of the child.” However, it can be void if it’s signed improperly by people who are not eligible to use the form, it can be rescinded within 60 days of signing it by either of the people who signed the form, and it can be challenged by another person in court for up to two years after it is signed. So, there are a lot of ways that it can be not as protective as a judgment. Also, even though the law says it is the equivalent of a judgment, we don’t actually know if other states will treat it as a judgment or as an administrative document when it comes to out-of-state enforcement.
So, should you and your co-parent by assisted reproduction sign a voluntary declaration of parentage? I would need to talk to folks individually to understand their specific circumstances, but generally speaking, if you have no money to get a judgment, it’s certainly better than nothing. But all things being equal, I would always suggest a parentage or adoption judgment to fully protect you.
[1] These forms are not available to be used in the context of surrogacy.