BILL NUMBER: AB 1349	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Hill

                        FEBRUARY 18, 2011

   An act to amend Sections 7573 and 7612 of the Family Code,
relating to paternity.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1349, as introduced, Hill. Paternity: conflicting presumptions.

   Under existing law, with certain exceptions, a man is conclusively
presumed to be the father of a child if he was married to and
cohabiting with the child's mother. Existing law also provides that
if a man signs a voluntary declaration of paternity, it has the force
and effect of a judgment of paternity, subject to certain
exceptions. Existing law further provides that a man is rebuttably
presumed to be the father if he was married to, or attempted to
marry, the mother before or after the birth of the child, or he
receives the child as his own and openly holds the child out as his
own. Under existing law, the voluntary declaration of paternity may
be set aside by the court if genetic evidence establishes the man is
not the father of the child, while the latter presumptions are
rebutted by a judgment establishing paternity by another man.
Existing law provides that if 2 or more presumptions conflict with
each other, the presumption which on the facts is founded on the
weightier considerations of policy and logic controls.
   This bill would authorize a person who is rebuttably presumed to
be the child's parent under the above-described provisions to bring a
motion to set aside a voluntary declaration of paternity, and would
require the court to consider specified factors, including the
nature, duration, and quality of the petitioning party's relationship
with the child in deciding whether to set aside the voluntary
declaration of paternity. The bill would include these proceedings
among the exceptions to the provision that a voluntary declaration of
paternity has the force and effect of a judgment of paternity. The
bill would provide that, in the event of a conflict between a
rebuttable presumption of paternity and the voluntary declaration of
paternity, the weightier considerations of policy and logic control.

   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 7573 of the Family Code is amended to read:
   7573.  Except as provided in Sections 7575, 7576,  and
 7577,  and 7612,  a completed voluntary
declaration of paternity, as described in Section 7574, that has been
filed with the Department of Child Support Services shall establish
the paternity of a child and shall have the same force and effect as
a judgment for paternity issued by a court of competent jurisdiction.
The voluntary declaration of paternity shall be recognized as a
basis for the establishment of an order for child custody,
visitation, or child support.
  SEC. 2.  Section 7612 of the Family Code is amended to read:
   7612.  (a) Except as provided in Chapter 1 (commencing with
Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2
or in Section 20102, a presumption under Section 7611 is a rebuttable
presumption affecting the burden of proof and may be rebutted in an
appropriate action only by clear and convincing evidence.
   (b) If two or more presumptions arise under Section 7610 or 7611
that conflict with each other, or if a presumption under Section 7611
conflicts with a claim pursuant to Section 7610, the presumption
which on the facts is founded on the weightier considerations of
policy and logic controls.
   (c) The presumption under Section 7611 is rebutted by a judgment
establishing paternity of the child by another man. 
   (d) Within two years of the execution of a voluntary declaration
of paternity, a person who is presumed to be a parent under Section
7611 may file a petition to set aside a voluntary declaration of
paternity. The court's ruling on the petition to set aside the
voluntary declaration of paternity shall be made taking into account
the validity of the voluntary declaration of paternity, and the best
interests of the child based upon the court's consideration of the
factors set forth in subdivision (b) of Section 7575, as well as the
nature, duration, and quality of the petitioning party's relationship
with the child and the benefit or detriment to the child of
continuing that relationship. In the event of any conflict between
the presumption under Section 7611 and the voluntary declaration of
paternity, the weightier considerations of policy and logic shall
control.