BILL ANALYSIS Ó 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 AB 1337 Page 2 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 AB 1337 Page 3 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 AB 1337 Page 4 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 AB 1337 Page 5 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