BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1337
                                                                  Page  1

          Date of Hearing:   January 10, 2012

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                    AB 1337 (Alejo) - As Amended:  January 4, 2012

                    PROPOSED CONSENT (As Proposed to be Amended)

           SUBJECT  :  ESTABLISHING PATERNITY:  AFTER DEATH OF ONE PARENT

           KEY ISSUE  :  AFTER ONE PARENT HAS DIED, SHOULD THE PROCESS OF 
          ESTABLISHING LEGAL PARENTAGE FOR THE OTHER PARENT BE CLARIFIED?

           FISCAL EFFECT  :   As currently in print this bill is keyed 
          non-fiscal.  

                                      SYNOPSIS
                                          
          When a parent with minor children dies, the other parent is 
          generally entitled to custody of the child.  However, if the 
          surviving parent has not yet established paternity or legal 
          parentage, that parent has no legal right to custody of the 
          child and the child has no right to support from that parent.  
          Current law allows a child, the child's natural mother or the 
          child's presumed father to bring an action to establish legal 
          parentage, but the procedure to bring that action generally 
          requires that the other parent be a party to the action and be 
          served with notice.  If that parent is dead, there is no clear 
          procedure to establish parentage.

          This non-controversial bill resolves that problem by creating a 
          procedure to establish parentage when the other parent is dead 
          by providing notice to the person or persons with physical 
          custody of the child and relatives within the second degree.  
          This ensures that, in particular, grandparents have notice of 
          the action and that the best interests of the child can be 
          protected.  There is no known opposition to this bill.

          SUMMARY  :  Creates a procedure to establish paternity when one 
          parent has died.  Specifically,  this bill  : 

          1)Provides that, in an action to determine the existence of a 
            parent-child relationship, when one parent has died and there 
            are no existing court orders or pending actions involving 
            custody or guardianship of the child, the person seeking to 








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            establish paternity must provide notice to:  

             a)   Individuals having physical custody of the child.  If 
               such individuals cannot be located, requires the court to 
               prescribe the manner of giving notice.
             b)   Relatives of the child, within the second degree, if 
               known to the person bringing the parentage action.  If such 
               relatives cannot be located, the court must prescribe an 
               alternative manner of providing notice or dispense with 
               notice to those individuals.

          2)Requires that proof of the notice given under #1, above, be 
            filed with the court prior to the hearing on the motion to 
            determine the existence of the parent-child relationship.



           EXISTING LAW  :  

          1)Defines "parent and child relationship" as the legal 
            relationship between a child and the child's natural or 
            adoptive parents and through which rights, privileges, duties 
            and obligations arise.  (Family Code Section 7601.  Unless 
            stated otherwise, all further statutory references are to that 
            code.)

          2)Provides that a child born to married parents who are 
            cohabiting is presumed to be a child of the marriage and that 
            presumption becomes conclusive two years after birth.  
            (Sections 7540-41.)

          3)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; attempted to marry the mother; 
            or if he openly holds himself out to be the father.  If two or 
            more paternity presumptions conflict with one another, the 
            presumption which is founded on the weightier considerations 
            of policy and logic controls.  (Sections 7611, 7612.)

          4)Provides that paternity may be established by voluntary 
            declaration for unmarried parents.  (Section 7570 et seq.)

          5)Provides that a civil action to either declare the existence 
            of a parent-child relationship or the nonexistence of such a 
            relationship paternity may be brought by, among others, the 








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            child, the child's mother, a man presumed to be the child's 
            father, or prospective adoptive parents.  (Section 7630.)

          6)Provides that if one parent is dead, is unable or refuses to 
            take custody, or has abandoned the child, the other parent is 
            entitled to custody of the child.  (Section 3010.)

          7)Allows a court to appoint a guardian of a minor.  Requires 
            that notice of such an action be given to, among others, the 
            parents of the child and those having legal or actual custody 
            of the child.  (Probate Code Sections 1511, 1514.)

           COMMENTS  :  Unless legal parentage (paternity) is established, a 
          parent has no legal rights or responsibilities for a child, 
          including the right to custody and visitation and the 
          responsibility to financial support the child, and the child has 
          no rights, including rights to support and inheritance.  With 
          the exception of married parents, all other parents must take 
          steps to establish paternity.  Under current law, those steps 
          require involvement by the other parent.  If that parent dies, 
          no clear procedure exists today to establish parentage; and, 
          thus, the surviving parent will have no legal rights and 
          responsibilities for the child.  If however, parentage is 
          established, the surviving parent is entitled to custody of the 
          child, and the child is entitled to support.  This bill 
          clarifies the procedure that the surviving parent must use to 
          establish legal parentage and helps ensure that the child has a 
          legal parent.

           Different Ways to Establish Legal Parentage  :  There are several 
          different ways to establish parentage.  If parents are married 
          when their child is born, the child is presumed to be the child 
          of the marriage and that presumption becomes conclusive after 
          two years.  Unless challenged within two years, no additional 
          steps are necessary for these married parents to establish 
          parentage.

          Unmarried parents can establish paternity very simply when their 
          child is born by signing a voluntary declaration of paternity at 
          the hospital.  This form, signed under penalty of perjury, 
          states that both parents are the biological parents of the 
          child.  This form can be rescinded for a short period of time 
          and can be challenged for two years, but is a conclusive 
          presumption of paternity after that.  A voluntary paternity 
          declaration can also be signed later, and local child support 








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          agencies assist with that process.

          Alternatively, the child, the natural mother, the presumed 
          father (or adoption agencies or prospective adoptive parents), 
          or the local child support agency can bring an action for 
          purposes of declaring paternity (or, in the case of adoptive 
          parents, declaring the nonexistence of a parent-child 
          relationship).  To do so, a petition to establish a parental 
          relationship is filed with the court and served on the other 
          parent.   If, however, the other parent is dead, there is no 
          clear procedure to establish paternity.

           This bill remedies that problem by creating a procedure to 
          establish paternity when one parent is dead  .  This bill sets out 
          the procedure to be used to establish paternity when one parent 
          has died.  The procedure seeks to provide notice to those 
          individuals most likely to have an interest in the child, 
          including any person who has physical custody of the child and, 
          if known to the person seeking to establish paternity, relatives 
          within the second degree, which include grandparents and 
          siblings.  Since the whereabouts of those with custody of the 
          child or relatives may not always be known to the person trying 
          to establish paternity, in those situations this bill requires 
          the court to prescribe an alternative manner of providing legal 
          notice.  In the case of relatives who cannot be located, the 
          court, if appropriate, can choose to dispense with notice 
          altogether.  

          The process created by this bill is limited to situations where 
          there are no existing court orders or pending actions involving 
          custody or guardianship of the child.  In those situations, the 
          person trying to establish paternity should seek to appear in 
          the existing legal action.  This will help minimize multiple 
          court actions involving the same child and allow justice to be 
          served more efficiently and effectively.

          These provisions, taken together, help ensure that those most 
          likely to be interested in the child's welfare have notice of 
          the paternity action and can seek to participate in it.  
          However, this bill also ensures that the person trying to 
          establish paternity has a process by which to do so and can do 
          so even if he or she cannot locate all possible interested 
          individuals.

          By providing a new process, this bill should help ensure that 








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          children who have lost one parent can still have a parent who is 
          legally responsible to care for them and support them.

           Pending Legislation  :  SB 261 (Harman) provides that in the event 
          of the death of a parent, the family court retains jurisdiction 
          to make any orders required in an existing case to effect the 
          rights of the surviving parent.  This bill is in the Senate 
          Judiciary Committee.

           Related Legislation  :  AB 458 (Atkins), Chap. 102, Stats. 2011, 
          established venue rules for guardianship cases when a 
          guardianship proceeding is filed in one county and a custody or 
          visitation proceeding has already been filed in one or more 
          other counties.  That bill created a presumption that venue is 
          proper in the county where the guardianship petition is filed if 
          the proposed guardian and child have resided in that county for 
          at least six months prior to the commencement of the 
          guardianship proceeding.  That bill also allowed the courts to 
          exercise discretion if it is in the best interest of the child 
          to retain jurisdiction in the county where the initial custody 
          or visitation proceeding was filed.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          None on file

           Opposition 
           
          None on file
           

          Analysis Prepared by  :    Leora Gershenzon / JUD. / (916) 
          319-2334