BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          AB 1337 (Alejo)
          As Amended May 25, 2012
          Hearing Date: June 12, 2012
          Fiscal: No
          Urgency: No
          NR   
                    

                                        SUBJECT
                                           
                            Parent and Child Relationship

                                      DESCRIPTION  

          In an action to determine paternity where one parent has died 
          and there are no existing orders or pending actions involving 
          custody or guardianship before the court, this bill would 
          require notice of the proceeding be given to, as specified, the 
          child's relatives within the second degree, and to any other 
          person(s) having physical custody of the child.

                                      BACKGROUND  

          Under existing law, children born out of a marriage are the 
          legal children of both parents.  Only legal parents have a right 
          to custody and to make legal decisions for a child; children 
          have a right to support only from legal parents. Birth mothers 
          are legal parents by proof of having given birth to the child, 
          but all other unmarried parents must take steps to establish 
          legal paternity.  Existing law allows a parent to bring an 
          action in court to establish a father - child relationship, or 
          parentage, but the procedure requires the other parent be a 
          party to the action and served with notice of the action.  As a 
          general rule, under existing law, when a parent dies the 
          surviving parent is entitled to custody.  However, if legal 
          parentage has not been established, which requires judicial 
          action for children born outside of marriage, a child may be 
          left without a legal parent or support when his or her legal 
          parent dies. 

          This bill would resolve this problem by creating a procedure to 
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          establish a father - child relationship, or parentage, when the 
          other parent has died and there are no other custody or 
          guardianship actions or orders before the court.  By requiring 
          notice to those with custody of the child as well as the child's 
          surviving family, this bill would ensure that the interests of 
          the child are represented in the parentage action.    


                                CHANGES TO EXISTING LAW

           Existing law  provides that there is a compelling state interest 
           in establishing paternity for all children, with the attendant 
           financial, medical, and developmental benefits. (Fam. Code Sec. 
                                       7570.)  
           
           Existing law  defines a parent and child relationship as the 
          legal relationship existing between a child and the child's 
          natural or adoptive parents incident to which the law confers or 
          imposes rights, privileges, duties and obligations.  The term 
          includes the mother and child relationship and the father and 
          child relationship. (Fam. Code Sec. 7601.)
           
          Existing law  provides that domestic partners shall have the same 
          rights, protections, and benefits, and shall be subject to the 
          same responsibilities, obligations and duties under law as are 
          granted to and imposed on spouses. (Fam. Code Sec. 297.5.)
           
          Existing law  provides that a parent and child relationship 
          between the child and the mother may be established by proof of 
          her having given birth to the child.  Existing law provides that 
          a parent and child relationship between the child and an adopted 
          parent may be established by proof of adoption.  (Fam. Code Sec. 
          7610.)  
           
           Existing law  provides that a child born to married parents who 
          are cohabiting is presumed to be a child of the marriage.  This 
          presumption becomes conclusive two years after the child's 
          birth.  (Fam. Code Secs. 7540 and 7041.)
           
          Existing law  provides that a man is presumed to be the natural 
          father if: 
                 he and the child's natural mother are or have been 
               married to each other and the child is born during the 
               marriage or within 300 days after the marriage is 
               terminated;
                 before the child's birth, he and the child's natural 
                                                                      



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               mother have attempted to marry each other and the child is 
               born before or within 300 days of the marriage being 
               declared invalid; 
                 after the child's birth, he and the child's mother 
               married or attempted to marry and he is named as the father 
               on the child's birth certificate or he is obligated to 
               support the child by voluntary promise or order of the 
               court;
                 he receives the child into his home and openly holds the 
               child out as his natural child; or
                 he signs a voluntary declaration of paternity. (Fam. 
               Code Sec. 7611.)

           Existing law  provides that a civil action to declare the 
          existence or non-existence of a parent-child relationship may be 
          brought by, among others, the child, the child's mother, a man 
          presumed to be the child's father, or prospective adoptive 
          parents.  (Fam. Code Sec. 7630.)

           Existing law  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.  (Fam. Code Sec. 
          3010.)

           This bill  would provide 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 establish paternity must provide notice to 
          individuals having physical custody of the child and relatives 
          of the child within the second degree.

           This bill  would provide that if the above individuals cannot be 
          located, the court would be required to prescribe the manner of 
          giving notice.

           This bill  would require that proof of the notice given to those 
          in custody of the child be filed with the court prior to the 
          hearing on the motion to determine the existence of the 
          parent-child relationship.
                                        COMMENT
           
           1.Stated need for the bill
           
          In support of this bill, the author writes:

                                                                      



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             Current law allows a child, and 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 served with notice.  If that parent is dead, there 
             is no clear procedure to establish parentage. 

             By providing a new process, this bill should help ensure that 
             children who have lost one parent can still have a parent who 
             is legally responsible to care for them and support them. 

           2.This bill would create clear procedures and guidelines for 
            parentage actions where one parent is deceased
           
          Under existing law, any interested party may bring an action for 
          the purpose of determining the existence or non-existence of a 
          father and child relationship, but these actions generally 
          require notice to the legal parent. (Fam. Code Sec. 7630(b).)  
          Because the issue of notice when a parent has died has not been 
          determined, there is confusion and a lack of consistency among 
          courts regarding who is able to come forward and what parties 
          must be noticed. Unpredictability in the legal system produces 
          inconsistent results, creates significant difficulty for 
          self-represented litigants, and can drive up the cost of 
          litigation.  

          Regarding this provision, the Judicial Council writes: 
             AB 1337 will fill the existing gap by providing clear 
             information for the court on what is required to establish 
             parentage under these circumstances. ? ÝT]he existence of a 
             clear procedure will allow court self-help center staff to 
             provide legal information on what is required to establish 
             parentage in these actions so that self-represented litigants 
             can access the courts and obtain the relief they are seeking 
             in an efficient and just manner. 

          By providing guidelines and procedures for establishing 
          parentage when one parent is deceased, this bill would encourage 
          consistent and predictable treatment of litigants in these 
          proceedings.  
             
          3.The best interests of the child are more likely achieved when 
            all interested parties are represented
           
          Under existing law a parent must be noticed when the other 
          parent files a parentage action, yet the law is silent regarding 
                                                                      



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          notice in parentage actions when one parent has died. This bill 
          would require a child's relatives within the second degree and 
          the persons having custody of the child to be noticed of a 
          paternity action if the legal parent has died.  The provisions 
          of this bill would only apply in situations where there are no 
          existing orders or pending actions regarding custody or 
          guardianship, ensuring that the parentage action by a 
          non-custodial parent would not upset the existing custody plans 
          of the deceased parent.

          Existing law provides that the state has a compelling interest 
          in establishing parentage for all children with the attendant 
          financial, medical, and developmental benefits that parentage 
          provides.  (Fam. Code Sec. 7570.)  Paternity is conclusively 
          presumed for children born out of a marriage, as specified, but 
          there are a number of ways a father can establish paternity 
          outside of marriage.  He can sign a voluntary declaration of 
          paternity, or he and the legal mother can bring an action in 
          court to establish a parental relationship if the father 
          satisfies a presumption of paternity under existing law.  (Fam. 
          Code Sec. 7611.) However, if a legal parent has died, there is 
          no clear procedure to establish parentage for the surviving 
          parent who has not yet established paternity.   

          In the event of a parent's death, there may be many people who 
          are interested in the welfare of a child and feel entitled to 
          custody, including surviving parents, grandparents, custodial 
          guardians, god parents, or siblings.  There may also be 
          situations where no interested parties exist or are notified so 
          that they may come forward, and the child will ultimately be 
          placed in foster care. In the vast majority of situations, 
          courts prefer to place children in safe homes with relatives or 
          adults the children know over with strangers in foster homes.  
          In support of this bill, the Judicial Council writes, 
          "Ýp]roviding notice to those with the custody of the child as 
          well as the child's surviving family will ensure that the 
          interests of the child are represented in the parentage action." 
           

          Arguably, if family members and custodians are not represented, 
          it is unlikely that a court will be able to consider how each 
          person would contribute to a child's well-being.  However, if 
          all interested parties are before the court, a judge will be 
          able to fashion custody and support orders that take into 
          account the unique situation and capacity of all parties.  A 
          hypothetical order may consist of custody with grandparents, 
                                                                      



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          with child support and visitation from the father, and all 
          parties sharing in the educational and health decisions of the 
          child.  

          By requiring notice to those most likely to have an interest in 
          a child's welfare when a party brings an action to establish 
          parentage after the other parent has died, this bill may help 
          ensure courts will have the information necessary to make 
          decisions in the best interest of a child.


           Support  :  Association of Certified Family Law Specialists 
          (ACFLS); Judicial Council of California

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known 

           Prior Legislation  :  None Known

           Prior Vote  :

          Assembly Floor (Ayes 67, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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