BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2003-2004 Regular Session
AB 252 A
Assembly Member Jackson B
As Amended June 9, 2004
Hearing Date: June 15, 2004 2
Family Code 5
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SUBJECT
Paternity Judgments
DESCRIPTION
This bill would create a procedure to disestablish
paternity when a genetic test indicates that a man who
previously executed a voluntary declaration of paternity or
who was found by a court to be the father of a child is, in
fact, not the biological father of the child. This bill
would establish a time limitation for seeking to
disestablish paternity. This bill also would permit the
court to exercise its discretion to grant or deny a motion
to disestablish paternity consistent with the best interest
of the child, based upon consideration of specified
factors. This bill does not apply to any child presumed to
be the child of a marriage or to any adoption or paternity
case relating to a child conceived by artificial
insemination or pursuant to a surrogacy agreement.
BACKGROUND
Existing law relies upon long-established processes and
presumptions to determine the paternity of a child, and
limits the period in which that determination may be
challenged to ensure finality to the decision and stability
to the family structure.
The advent of genetic paternity testing has disrupted this
system. Easily available and widely accepted as accurate,
genetic testing has altered the paternity law landscape as
(more)
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some men, women, and families who accepted earlier
presumptions of fatherhood now learn those presumptions
were wrong, and cope with the significant emotional and
financial consequences of that discovery.
Compounding the uncertainties introduced by genetic testing
is the fact that the majority of paternity judgments are
established by default, with the alleged father never
appearing in court to challenge the claim before a
paternity judgment is entered. Many men whose fatherhood
was established by default judgment say they never received
notice of the paternity action until it was too late to
challenge it under current law.
In 2002, the Legislature passed AB 2240 (Wright), which
would have allowed a paternity judgment established by
default to be set aside within three years after the moving
party discovered the possibility that the previously
established father was not the biological father of the
child. At the specific direction of this Committee, AB
2240 included a requirement that complaints in paternity
actions be personally served, in order to resolve one of
the major factors complicating the paternity judgment issue
- the alleged lack of notice enabling a named father to
timely challenge the judgment.
AB 2240 was vetoed by then-Governor Davis, whose veto
message stated that the bill's personal service requirement
would raise service costs, encourage evasion of service,
and risk losses in collections that would put federal
funding in jeopardy. The Governor's veto message also
directed the Department of Child Support Services (DCSS) to
work with advocates on both sides of this issue "to develop
recommendations that will address paternity fraud."
A DCSS Paternity Establishment Workgroup met monthly
between February and August 2003 and attempted to draft
guidelines and develop legislation. Although the workgroup
did not develop a consensus position, AB 252 was drafted
based on discussions of the workgroup. AB 252 is an
attempt to establish a procedure and timeline for
challenging all determinations of paternity (not only
default judgments) that balances the financial interests of
men who are not the fathers of children for whom they have
been ordered to pay support, the interests of children in
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receiving financial support and continuing relationships
with persons with whom they may have a significant
relationship, and the interest of the state in achieving
the finality of judgment. AB 252 incorporates the most
broadly supported provisions of AB 2240, deletes the parts
objected to by the Governor, and specifies factors a court
is to consider to determine whether disestablishing
paternity is in the best interest of the child.
CHANGES TO EXISTING LAW
1.Existing law makes legislative findings that there is a
compelling state interest in establishing the paternity
of a child, as a first step toward a child support award
and other benefits to the child. [Fam. Code Sec. 7570.]
Existing law provides that a man is presumed to be the
father of a child if he is married to the mother during a
specified time frame surrounding the child's birth; or if
he openly holds himself out to be the father; or under
other specified circumstances. [Fam. Code Secs. 7540,
7611.]
Existing law provides that paternity may be established
by voluntary declaration, or through a civil action
brought by any interested party, as specified. [Fam. Code
Secs. 7630, 7570 et seq.]
Existing law provides that the juvenile court has a duty
to inquire about, and if not otherwise determined, to
attempt to determine the parentage of each child who is
the subject of a petition filed under Sections 300
(dependency), 601 or 602 (delinquency) of the Welfare and
Institutions Code, and may establish and enter a judgment
of paternity. [Cal. Rules of Court Rule 1413.]
Existing law provides that a motion seeking genetic
testing to contest either a presumption of paternity
under Sections 7540 or 7611, or a voluntary declaration
of paternity, must be filed within two years of the birth
of the child. [Fam. Code Secs. 7541, 7575.]
Existing law provides that a motion to set aside a
default judgment must be filed within two years of the
entry of judgment. [Code Civ. Proc. Secs. 473.5, 585.5,
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663a.]
Existing law provides that a child support order may be
set aside for fraud, perjury, or lack of notice, within
six months of the time that the moving party discovered
(or reasonably should have discovered) the fraud or
perjury, or within six months of obtaining notice of the
support order. [Fam. Code Sec. 3691.]
This bill would provide that, notwithstanding any other
provision of law, a mother, previously established
father, child, or legal representative of any of them may
move to set aside a judgment establishing paternity,
including a voluntary declaration of paternity, if
genetic testing indicates that the previously established
father is not the biological father of the child, or in
order to request a genetic test.
This bill would provide that such a motion must be filed:
(1) within two years of the date on which the previously
established father knew or should have known of a
judgment that established him as the father or the date
on which he knew or should have known of the existence of
an action to adjudicate the issue of paternity, whichever
is first; (2) within two years of the date of the child's
birth if paternity was established by a voluntary
declaration of paternity, except as otherwise provided by
Family Code Section 7575(c); or (3) within two years of
the effective date of this bill in the case of a
previously established father who is the legal father as
the result of a default judgment as of the effective date
of this bill.
This bill would provide that it would not apply if the
child is presumed to be the child of a marriage because
the man was married to the mother during a specified time
frame surrounding the child's birth (Fam. Code Sec.
7540), that it does not establish a basis for termination
of adoption, or for setting aside a judgment of paternity
regarding a child conceived by artificial insemination or
pursuant to a surrogacy agreement.
This bill would define certain terms for the purposes of
the article, and would provide that a "judgment" as used
in the article does not include a judgment in any action
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for marital dissolution, legal separation, or nullity.
This bill would provide that a court may grant a motion
only if, among other conditions, the motion is
accompanied by a declaration that the marital presumption
does not apply; the motion is served on the other parent,
the local child support agency if support enforcement
services are being provided, and any guardian ad litem of
the child; and the court is satisfied by the genetic
evidence that the previously established father is not
the biological father of the child.
This bill would provide that, if the court finds that
genetic testing indicates that the previously established
father is not the biological father of the child, the
court nevertheless may deny the motion to set aside the
previous judgment establishing paternity (including a
voluntary declaration of paternity) if the court
determines that denial is in the best interest of the
child, after consideration of the following factors:
(a) The age of the child;
(b) The length of time since the entry of the
judgement establishing paternity;
(c) The nature, duration, and quality of any
relationship between the previously established
father and the child, including the duration and
frequency of periods when the two lived together or
enjoyed a parent-child relationship;
(d) The request of the previously established father
that the parent-child relationship continue;
(e) Notice by the biological father of the child that
he does not oppose preservation of the relationship
between the previously established father and the
child;
(f) The benefit or detriment to the child in
establishing biological parentage;
(g) Whether the conduct of the previously established
father has impaired the ability to ascertain the
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identity of, or get support from, the biological
father; and
(h) Any additional factors deemed by the court to be
relevant to its determination of the best interest
of the child.
This bill would provide that, if a court denies a motion
brought under the affected sections, the court shall
state on the record the basis for the denial.
This bill would provide that a court shall not vacate or
set aside a paternity judgment under this section: (1)
where the judgment was entered in another state; or (2)
where it was entered in this state, and genetic tests
were conducted that did not exclude the previously
established father as the biological father of the child.
This bill would provide that a guardian ad litem may be
appointed to represent the best interests of the child
regarding a motion brought under this section.
1.Existing law authorizes a court to require a mother,
child, and alleged father to submit to genetic testing to
determine paternity in any civil action where paternity
is relevant. [Fam. Code Sec. 7550 et seq.]
This bill would provide that in a motion brought under
this section, the court shall, at the request of a party
or on its own motion, order genetic testing, conducted in
accordance with existing law, to assist in its
determination of paternity.
This bill would provide that, when a local child support
agency participates in a proceeding under this section,
it may obtain an order for genetic testing, and when
ordered by a court, the agency will be responsible for
the costs of the testing.
2.Existing law provides that a judgment entered on an
action to establish paternity may contain orders
concerning payment of support, visitation, and custody.
[Fam. Code Sec. 7637.]
This bill would provide that, if a court grants a motion
brought under this section, the court shall vacate any
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order for child support and arrearages issued on the
basis of a previous judgment of paternity.
3.This bill would specify that any estate, trust, personal
representative, trustee, or other person who makes a
payment or distribution from the estate of a decedent,
trust, insurance policy fund or pension fund shall not be
liable for distributions made in good faith reliance on a
judgment establishing paternity that is final for
purposes of direct appeal, and that no distribution may
be set aside or subject to collateral attack because of
the entry of an order setting aside or vacating a
judgment under this article.
COMMENT
1.Stated need for the bill
A draft version of the Paternity Establishment Workgroup
Recommendations provides the following summary of the
need for legislation in the area of challenge to
paternity judgments:
Accurate paternity establishment is crucial to
providing long-term financial and emotional stability
for children born out of wedlock. Paternity also
helps provide other benefits to the child, such as
access to complete medical history, inheritance
rights, insurance, social security, veteran's and
other benefits. Many parties may be affected when
paternity is established for someone other than the
biological father.
. . .
The issue of whether, and if so, when, an individual
should be able to challenge a judgment of paternity
based on genetic evidence, after existing time periods
to file a motion with the court have expired, pits
strong interests against each other. On the one side
is the injustice of forcing individuals to pay child
support for children who are not their biological
children. This has the potential of creating
financial difficulties for the individual in starting
a family or in supporting his existing or extended
family. In addition, in many of these cases, the
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individual does not even know the child.
On the other side are two interests. First, there is
the interest of the child not only in receiving
financial support, but, in some cases, in continuing a
relationship with someone who may be the only father
the child has ever known. The harm to the child from
the disruption of the relationship may be significant.
Second, there is the state's interest in achieving
the finality of judgments.
The State of California, Commission on the Status of
Women states, in support of the bill:
The establishment of paternity is a highly sensitive
issue for all parties involved. AB 252 would not only
provide opportunities for men to challenge a paternity
judgment on the basis of genetic testing that shows
they are not the biological father, but would also
assist them in challenging a judgment that serves as
the basis of a child support order.
Most importantly, AB 252 provides numerous safeguards
that best serve the needs of the child, which we
believe should be of primary concern, including
judicial discretion to deny a motion in certain
circumstances. The two-year limit for filing of the
motion would help ensure closure within a reasonable
timeframe. This is critical for children who face the
loss of both financial and emotional support.
2.Bill's procedure conforms to existing law concerning
setting aside a voluntary declaration of paternity and
adds "best interest" analysis to existing law
Family Code Section 7575(b)(3) allows a mother, the man
who signed the voluntary declaration of paternity, or the
local child support agency to move for genetic tests and
to set aside a voluntary declaration within two years
from the date of the child's birth. The time limits of
this bill are the same.
Family Code Section 7575(b)(1) states the court "may set
aside the voluntary declaration of paternity" if the
genetic tests ordered upon a motion under the section
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indicate the man who signed the voluntary declaration is
not the father of the child. This bill would specify
factors the court is to consider to determine whether it
is in the best interest of the child to set aside the
voluntary declaration under Section 7575, identical to
the factors to be considered under the new procedure
created by AB 252.
3.Comparison of SB 1030 (Ashburn) and AB 252 (Jackson)
SB 1030 (Ashburn) would create a less encompassing
procedure to set aside default paternity judgments based
on a genetic test. SB 1030 was passed by this Committee
on April 22, 2003. Senator Ashburn is a principal
co-author of AB 252. SB 1030 is currently awaiting
hearing in the Assembly Judiciary Committee.
Comparing the two, SB 1030 would create a procedure for
the setting aside only of judgments of paternity
established by default, whereas AB 252 would create a
procedure for setting aside all judgments of paternity
including voluntary declarations of paternity, when
genetic tests indicate the man is not the father of the
child. (Neither bill would apply in the case of a
judgment entered by a tribunal of another state or if
prior to the entry of judgment, genetic tests were
conducted which did not exclude the man as the biological
father of the child.)
SB 1030 would permit the motion to set aside a default
judgment to be brought within two years of the service of
a wage assignment order on the employer of the man, or in
the case of a man who is subject to a wage assignment
order at the time of enactment, within two years of
enactment. AB 252 would permit a motion to set aside a
court judgment within two years of either the date on
which the man knew or should have known of the judgment
or the date on which the man knew or should have known of
the existence of an action to adjudicate the issue of
paternity, whichever is first. AB 252 would permit a
motion to set aside a voluntary declaration of paternity
within existing statutory time limits of within two years
of the date of the child's birth, or within the time
specified in Code of Civil Procedure Section 473 if an
order for custody, visitation or child support based upon
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the voluntary declaration of paternity has been entered.
AB 252 would allow any man subject to a default paternity
judgment at the time of enactment to bring a motion to
set aside the judgment within two years of enactment,
regardless of whether he is currently subject to a wage
assignment order.
The author states that AB 252 closes a gap in timing left
open by SB 1030, in that under SB 1030, a man would have
until two years after he is served with a wage assignment
order to bring a motion to set aside a judgment. In some
cases, a wage assignment order is never issued, which
would leave a judgment of paternity open infinitely,
contrary to the state's interest in finality of
judgments. A man served with papers in an action to
establish paternity would be disincentivized to respond
in that he could ignore the action and wait until up to
two years after his wages are garnished, if they ever
are, to contest the determination of paternity. Under AB
252, a man who asserts he was not aware of the action to
adjudicate paternity or the judgment until his wages were
garnished would still have the opportunity to argue that
his motion was brought within two years of the date he
knew or should have known of the judgment or action.
4.Author's amendments (technical)
Author's amendments will adopt the following technical
amendments recommended by Committee staff.
a. Page 4, lines 13 to 14: strike out "entry of the
judgment or order establishing paternity" and insert
"execution of the voluntary declaration of paternity
by the man who signed the voluntary declaration"
When importing from the new article relating to
"judgments" (as defined in the new article) the
factors to be considered in determining the best
interest of the child, the language was not changed to
reflect that in Section 7575(b), only voluntary
declarations of paternity are at issue and there has
not been an "entry of [ ] judgment or order
establishing paternity."
b. Page 4, lines 16, 18, 20, 23 to 24 and 27: strike
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out "previously established father" and insert "man
who signed the voluntary declaration"
When importing from the new article relating to
"judgments" (as defined in the new article) the
factors to be considered in determining the best
interest of the child, the language was not changed to
reflect that in Section 7575(b), only voluntary
declarations of paternity are at issue and there is
not a "previously established father" as defined in
the new article, there is who Section 7575 (b)(1)
terms "the man who signed the voluntary declaration."
c. Page 9, line 32: strike out "or order"
The term "judgment" is defined in the new article to
include orders and this reference to a "judgment or
order" is unnecessary and could result in confusion.
Support: Academy of California Adoption Lawyers;
California National Organization for Women; Family
Law Section, State Bar of California; State of
California, Commission on the Status of Women
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: AB 2380 (Harman) would
repeal the existing Uniform Act on
Blood Tests to Determine Paternity
and the Uniform Parentage Act and
enact a new Uniform Parentage Act,
which would, among other things,
create a parentage registry; held in
Assembly Judiciary Committee because
the author is not moving the bill and
intends to hold an interim hearing to
discuss the logistics of a registry
and issues affecting adoption
SB 1030 (Ashburn) pending in Assembly Judiciary Committee
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Prior Legislation: AB 2240 (Wright, 2002) would have
allowed a paternity judgment to be vacated or
set aside within three years after the moving
party discovers, or should have discovered,
the possibility that the previously
established father is not the biological
father (vetoed by then-Governor Davis due to
concerns that personal service requirement
for paternity actions would reduce support
collections below federally required
minimums, risking loss of federal funds)
Prior Vote: Assembly Judiciary Committee 9-3
Assembly Floor 79-0
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