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
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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