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 (more) AB 1337 (Alejo) Page 2 of ? 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 AB 1337 (Alejo) Page 3 of ? 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: AB 1337 (Alejo) Page 4 of ? 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 AB 1337 (Alejo) Page 5 of ? 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, AB 1337 (Alejo) Page 6 of ? 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) **************