Judge: Michael Shultz, Case: 22CMCP00170, Date: 2022-12-08 Tentative Ruling

Case Number: 22CMCP00170    Hearing Date: December 8, 2022    Dept: A

22CMCP00170 In the Matter of:  Madeline Sophia Pivaral, a minor

Thursday, December 8, 2022 at 8:30 a.m.

[TENTATIVE] ORDER CONTINUING THE HEARING ON PETITION FOR CHANGE OF NAME

Petitioner, Madeline Sophia Pivaral, by and through her mother, Naomi Eulalia Barajas, filed this Petition on September 28, 2022, for an Order for Change of Name to Madeline Sophia Barajas because Petitioner’s father did not sign her birth certificate and has not acknowledged Petitioner as his daughter.  The court’s file does not reflect that Petitioner has complied with the requirements for publication of the Order to Show Cause. Code Civ. Proc., § 1277.

As Petitioner is a minor, both parents must consent to the change. Code Civ. Proc., § 1276 subd. (c). The Petition is signed by only one parent. Additionally, Petitioner did not disclose the name and address of the other parent as required by statute.

If only one parent consents to the name change, Petitioner is required to serve the other parent with the Order to Show Cause at least 30 days before the hearing. Code Civ. Proc., § 1277 subd. (a)(4). If the other parent resides in California, the other parent must be personally served with the Order to Show Cause. If the other parent resides outside of California, Petitioner may serve the OSC on the other parent by mail. Id.

If service of the Order to Show Cause cannot be “reasonably accomplished,” Petitioner shall file a supplemental declaration of due diligence describing the efforts made to locate and serve the other parent or explain why service of the OSC on the other parent could not be accomplished.  Id. Either the proof of service or the declaration of due diligence shall be filed no less than 10 days before the continued hearing date.

Although Petitioner states that the father’s name is not on the birth certificate, this alone does not determine a person’s status as a natural parent. A person is presumed to be the natural parent if the presumed parent and the child’s natural mother are or have been married to each other and the child is born during the marriage or within 300 days after the marriage is terminated. Fam. Code, § 7611 (subd.a). Additionally, the child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the marriage. Fam. Code, § 7540.

If Mother was not married to the biological father at the time of the child’s birth, Mother is to file a supplemental declaration affirming these facts under penalty of perjury. Mother is also ordered to file a certified copy of the Minor’s birth certificate. Otherwise, Petitioner must serve the other parent with the Order to Show Cause as described above.

Accordingly, the court continues the hearing to January 20, 2023 at 8:30 a.m. in Department A of the Compton Courthouse. Petitioner is ordered to comply with the requirements for publication of the Order to Show Cause and provide the declaration and birth certificate as previously described.