BILL NUMBER: AB 2240	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Wright

                        FEBRUARY 20, 2002

   An act to amend Sections 7574 and 7630 of, and to add Article 1.5
(commencing with Section 7645) to Chapter 4 of Part 3 of Division 12
of, the Family Code, relating to paternity testing.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2240, as introduced, Wright.  Paternity testing.
   (1) Existing law provides for a voluntary declaration of
paternity. Existing law requires that declaration to be executed on a
form developed by the Department of Child Support Services
containing specified information, including a statement by the mother
that the man who has signed the voluntary declaration of paternity
is the only possible father.
   This bill would require the Department of Child Support Services
to consult with father's rights advocacy groups upon further
development of that form.  This bill would also require the mother's
statement to be printed in boldface type and underlined.
   (2) Existing law authorizes specified persons to bring an action
to declare or determine the existence of the father and child
relationship, as specified.
   This bill would require specified persons who bring an action
pursuant to that provision to sign a declaration under penalty of
perjury that the defendant is the only possible father.  Because
perjury is a criminal offense the bill would create a new crime,
thereby imposing a state-mandated local program.
   (3) Existing law authorizes a local child support agency to issue
an administrative order requiring the mother, the child, and the
alleged father to submit to genetic testing to determine paternity in
any civil action or proceeding in which paternity is a relevant fact
and a contested issue.
   Existing law authorizes a party in a civil action to make a motion
to vacate a judgment within a specified period of time.
   This bill would set forth procedures whereby certain persons may
move to vacate a judgment establishing paternity entered by a court
of this state after the expiration of the period of time in which a
party may generally move to vacate a judgment, as specified.
  (4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) DNA genetic testing is recognized as scientifically valid by
the courts of this country.
   (b) In the year 2000, the State of California recognized the
validity of DNA testing and created a procedure for an individual
convicted of certain crimes to petition a court to reopen his or her
case.
   (c) A man who is adjudicated to be the father of a child by a
court in a paternity action when he is not actually the biological
father of the child may be financially liable for up to 18 years of
child support.
   (d) The American Association of Blood Banks reported that out of a
total of more than 280,000 cases evaluated in 1999, almost 30
percent excluded the tested individual as the biological father.
   (e) A growing number of states now have antifraud paternity
statutes which permit an individual previously adjudicated to be the
father of a child to reopen his case and present or obtain DNA
testing if he believes he may have been erroneously identified as the
father.
   (f) Respect for the judicial system is greatly diminished when the
laws do not permit the correction of an injustice.
   For these reasons, it is the intent of the Legislature to enact
the Paternity Justice Act of 2002, as set forth in Section 4 of this
act.
  SEC. 2.  Section 7574 of the Family Code is amended to read:
   7574.  (a) The voluntary declaration of paternity shall be
executed on a form developed by the Department of Child Support
Services in consultation with the State Department of Health
Services, the California Family Support Council,  and
 child support advocacy groups  , and father's rights
advocacy groups  .
   (b) The form described in subdivision (a) shall contain, at a
minimum, the following:
   (1) The name and the signature of the mother.
   (2) The name and the signature of the father.
   (3) The name of the child.
   (4) The date of birth of the child.
   (5) A statement by the mother that she has read and understands
the written materials described in Section 7572  , that the
man who has signed the voluntary declaration of paternity is the only
possible father,  and that she consents to the
establishment of paternity by signing the voluntary declaration of
paternity.
   (6)  A statement by the mother that the man who has signed the
voluntary declaration of paternity is the only possible father.  The
statement shall be printed in boldface type and underlined.
   (7)  A statement by the father that he has read and
understands the written materials described in Section 7572, that he
understands that by signing the voluntary declaration of paternity he
is waiving his rights as described in the written materials, that he
is the biological father of the child, and that he consents to the
establishment of paternity by signing the voluntary declaration of
paternity.  
   (7)  
   (8)  The name and the signature of the person who witnesses
the signing of the declaration by the mother and the father  ,
the date, and the city and state of execution  .
  SEC. 3.  Section 7630 of the Family Code is amended to read:
   7630.  (a) A child, the child's natural mother, or a man presumed
to be the child's father under subdivision (a), (b), or (c) of
Section 7611, may bring an action as follows:
   (1) At any time for the purpose of declaring the existence of the
father and child relationship presumed under subdivision (a), (b), or
(c) of Section 7611.
   (2) For the purpose of declaring the nonexistence of the father
and child relationship presumed under subdivision (a), (b), or (c) of
Section 7611 only if the action is brought within a reasonable time
after obtaining knowledge of relevant facts.  After the presumption
has been rebutted, paternity of the child by another man may be
determined in the same action, if he has been made a party.
   (b) Any interested party may bring an action at any time for the
purpose of determining the existence or nonexistence of the father
and child relationship presumed under subdivision (d) of Section
7611.
   (c) An action to determine the existence of the father and child
relationship with respect to a child who has no presumed father under
Section 7611 or whose presumed father is deceased may be brought by
the child or personal representative of the child, the Department of
Child Support Services, the mother or the personal representative or
a parent of the mother if the mother has died or is a minor, a man
alleged or alleging himself to be the father, or the personal
representative or a parent of the alleged father if the alleged
father has died or is a minor.
   (d) An action under subdivision (c) shall be consolidated with a
proceeding pursuant to Section 7662 if a proceeding has been filed
under Chapter 5 (commencing with Section 7660).  The parental rights
of the alleged natural father shall be determined as set forth in
Section 7664.  The consolidated action shall be heard in the county
in which the Section 7662 proceeding is filed, unless the court in
which the action under subdivision (c) is filed finds, by clear and
convincing evidence, that transferring the action to the other county
poses a substantial hardship to the petitioner.  Mere inconvenience
does not constitute a sufficient basis for a finding of substantial
hardship.  If the court determines there is a substantial hardship,
the consolidated action shall be heard in the county in which the
paternity action is filed.  
   (e) Any person or entity, other than a person alleged or alleging
himself to be the father of a child, who brings an action to
determine the existence of the father and child relationship pursuant
to this section shall sign a declaration under penalty of perjury
that the person who is alleged to be the father of the child is the
only possible father of the child.  The declaration shall be attached
to the petition filed pursuant to this section. 
  SEC. 4.  Article 1.5 (commencing with Section 7645) is added to
Chapter 4 of Part 3 of Division 12 of the Family Code, to read:

      Article 1.5.  Vacating Judgment of Paternity

   7645.  This article shall be known and may be cited as the
Paternity Justice Act of 2002.
   7645.1.  For purposes of this article, the following definitions
shall apply:
   (a) "Previously established father" means a person identified as
the father of a child in a judgment issued by the superior court in
which the issue of paternity was, or could have been, raised.
   (b) "Previously established mother" means a person identified as
the mother of a child in a judgment issued by the superior court that
is the subject of a motion to vacate brought pursuant to this
article.
   (c) "Child" means the child of a previously established father, as
determined by the superior court in a judgment that is the subject
of a motion to vacate brought pursuant to this article.
   7646.  Notwithstanding any other provision of law, after the
expiration of the time period within which a judgment may be vacated
pursuant to Section 663a of the Code of Civil Procedure, the
previously established mother of a child, the previously established
father of a child, the child, or the legal representative of any of
these persons may move to vacate a judgment establishing paternity if
genetic testing indicates that the previously established father of
a child is not the biological father of the child.
   7647.  (a) A court shall grant a motion to vacate a judgment
establishing paternity only if all of the following conditions are
met:
   (1) The motion to vacate is filed prior to the date the child
reaches 18 years of age.
   (2) The motion is filed in a court of proper venue.
   (3) The motion contains, at a minimum, all of the following
information, if known:
   (A) The legal name, age, county of residence, and residence
address of the child.
   (B) The names, mailing addresses, and counties of residence, or,
if deceased, the date and place of death, of the following persons:
   (i) The previously established father and the previously
established mother, and the biological mother and father of the
child.
   (ii) The guardian of the child, if any.
   (iii) Any person who has physical custody of the child.
   (iv) The guardian ad litem of the child, as appointed pursuant to
Section 7647.5.
   (C) A declaration that the person filing a motion to vacate a
judgment of paternity believes that the previously established father
is not the biological father of the child, the specific reasons for
this belief, and a declaration that the person desires that the
paternity judgment be vacated.  The moving party is not required to
present evidence of a paternity test indicating that the previously
established father is not the biological father of the child in order
to bring this motion.
   (4) The court finds that the conclusions of the expert, as
supported by the evidence, are that the previously established father
is not the biological father of the child.
   (b) A motion to vacate the judgment of paternity shall include a
proof of service upon the following persons, excluding the person
bringing the motion:
   (1) The previously established mother.
   (2) The previously established father.
   (3) The local child support agency, if services are being provided
to the child pursuant to Title IV-D or IV-E of the Social Security
Act (42 U.S.C. Sec. 301 et seq.).
   7647.5.  A guardian ad litem shall be appointed for the child to
represent the best interests of the child in an action brought
pursuant to this article.
   7647.7.  Any genetic testing used to support the motion to vacate
shall be conducted in accordance with Section 7552.  The court may,
at the request of any person authorized to make a motion pursuant to
this article or upon its own motion, order genetic testing to assist
the court in making a determination whether the previously
established father is the biological father of the child.
   7648.  If the court determines that the genetic test results
conducted in accordance with Section 7552 exclude the previously
established father as the biological father of the child, the court
shall grant the motion to vacate the paternity judgment.
   7648.1.  The costs of genetic testing ordered pursuant to Section
7647.7, the costs of the guardian ad litem appointed pursuant to
Section 7647, and all court costs, including attorney's fees, shall
be paid by the nonprevailing party.
   7648.2.  (a) A local child support agency may participate in a
proceeding initiated pursuant to this article only if it is providing
services as specified in Title IV-D of the Social Security Act (42
U.S.C. Sec. 651 et seq.) at the time the motion is filed pursuant to
this article to a child who is the subject of that motion, and may
participate in the proceeding only if those services are being
provided at the time the motion is heard.
   (b) When the local child support agency participates in a
proceeding under this article, it may obtain an administrative order
for genetic tests as described in Section 7558.
   (c) The local child support agency is not responsible for the
costs of genetic testing when performed in connection with a
proceeding under this article, nor is the local child support agency
required to provide for, or assist in, genetic testing in any case in
which it is not providing services under Title IV-D of the Social
Security Act (42 U.S.C. Sec. 651 et seq.).
   7648.3.  A court shall not issue an order vacating a judgment
establishing paternity pursuant to this article under any of the
following circumstances:
   (a) The judgment was made or entered by a tribunal of another
state, even if the enforcement of that judgment is sought in this
state, unless genetic tests exclude the previously established father
as the biological father.
   (b) The judgment was made or entered in this state and genetic
tests were conducted which did not exclude the previously established
father as the biological father of the child or the judgment
resulted from a trial or contested hearing in which the issue of
paternity was, or could have been, raised and in which the defendant
was represented by counsel.
   7648.4.  Notwithstanding any other provision of law, if the court
grants a motion to vacate a paternity judgment pursuant to this
article, the court shall modify any order for child support issued on
the basis of that previous judgment of paternity.
   7648.7.  Except as otherwise provided in an order granting a
motion to vacate pursuant to this article, upon the granting of that
motion, all prior orders granting custody or visitation to a
previously established father may be terminated by the court.  In
making this determination, the court shall consider all of the
following circumstances:
   (a) The nature, duration, and quality of any relationship between
the previously established father and the child, including the
duration and frequency of any time periods during which the child and
the previously established father resided in the same household or
enjoyed a parent-child relationship.
   (b) Additional factors deemed by the court to be relevant to its
determination of the child's best interests.
   7648.8.  This article does not establish a basis for termination
of any adoption, and does not affect any obligation of an adoptive
parent to an adoptive child.
  SEC. 5.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.