BILL NUMBER: AB 1349 ENROLLED
BILL TEXT
PASSED THE SENATE JULY 14, 2011
PASSED THE ASSEMBLY MAY 2, 2011
AMENDED IN ASSEMBLY APRIL 14, 2011
INTRODUCED BY Assembly Member Hill
FEBRUARY 18, 2011
An act to amend Sections 7573, 7576, 7612, and 7613 of the Family
Code, relating to paternity.
LEGISLATIVE COUNSEL'S DIGEST
AB 1349, 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 provide that a voluntary declaration of paternity
is invalid if, at the time the declaration was signed, the child
already had a presumed parent, as specified, or if the man signing
the declaration is a sperm donor. The 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. The bill would make other conforming
changes.
Under existing law, the donor of semen provided to a licensed
physician and surgeon or to a licensed sperm bank for use in
artificial insemination or in vitro fertilization of a woman other
than the donor's wife is treated as if he were not the natural father
of a child thereby conceived.
This bill would enable a sperm donor to be treated as a natural
father if it is agreed to in a writing signed by the donor and the
woman prior to the conception of the child.
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, 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 7576 of the Family Code is amended to read:
7576. The following provisions shall apply for voluntary
declarations signed on or before December 31, 1996.
(a) Except as provided in subdivision (d), the child of a woman
and a man executing a declaration of paternity under this chapter is
conclusively presumed to be the man's child. The presumption under
this section has the same force and effect as the presumption under
Section 7540.
(b) A voluntary declaration of paternity shall be recognized as
the basis for the establishment of an order for child custody or
support.
(c) In any action to rebut the presumption created by this
section, a voluntary declaration of paternity shall be admissible as
evidence to determine paternity of the child named in the voluntary
declaration of paternity.
(d) The presumption established by this chapter may be rebutted by
any person by requesting blood or genetic tests pursuant to Chapter
2 (commencing with Section 7550). The notice of motion for blood or
genetic tests pursuant to this section shall be supported by a
declaration under oath submitted by the moving party stating the
factual basis for placing the issue of paternity before the court.
The notice of motion for blood tests shall be made within three years
from the date of execution of the declaration by the attesting
father, or by the attesting mother, whichever signature is later. The
two-year statute of limitations specified in subdivision (b) of
Section 7541 is inapplicable for purposes of this section.
(e) A presumption under this chapter shall override all statutory
presumptions of paternity except a presumption arising under Section
7540 or 7555, or as provided in Section 7612.
SEC. 3. 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 pursuant to Section 7630 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 best interests of the child based upon
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.
(e) A voluntary declaration of paternity is invalid if, at the
time the declaration was signed, any of the following conditions
exist:
(1) The child already had a presumed parent under Section 7540.
(2) The child already had a presumed parent under subdivision (a),
(b), or (c) of Section 7611.
(3) The man signing the declaration is a sperm donor, consistent
with subdivision (b) of Section 7613.
SEC. 4. Section 7613 of the Family Code is amended to read:
7613. (a) If, under the supervision of a licensed physician and
surgeon and with the consent of her husband, a wife is inseminated
artificially with semen donated by a man not her husband, the husband
is treated in law as if he were the natural father of a child
thereby conceived. The husband's consent must be in writing and
signed by him and his wife. The physician and surgeon shall certify
their signatures and the date of the insemination, and retain the
husband's consent as part of the medical record, where it shall be
kept confidential and in a sealed file. However, the physician and
surgeon's failure to do so does not affect the father and child
relationship. All papers and records pertaining to the insemination,
whether part of the permanent record of a court or of a file held by
the supervising physician and surgeon or elsewhere, are subject to
inspection only upon an order of the court for good cause shown.
(b) The donor of semen provided to a licensed physician and
surgeon or to a licensed sperm bank for use in artificial
insemination or in vitro fertilization of a woman other than the
donor's wife is treated in law as if he were not the natural father
of a child thereby conceived, unless otherwise agreed to in a writing
signed by the donor and the woman prior to the conception of the
child.