BILL ANALYSIS Ó
AB 1349
Page 1
Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1349 (Hill) - As Amended: April 14, 2011
SUBJECT : PATERNITY: CONFLICTING PRESUMPTIONS
KEY ISSUE : SHOULD A PRESUMED FATHER BE ABLE TO CHALLENGE THE
PATERNITY OF A MAN WHO SIGNED A VOLUNTARY DECLARATION OF
PATERNITY?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill, sponsored by the Academy of California Adoption
Lawyers and Equality California, seeks to level the playing
field between possible fathers, based on various legal
presumptions. Under current law, a man is a presumed father if
he is married to the mother when the child is conceived. That
presumption becomes conclusive within two years of the child's
birth. A man may also be a presumed father if he receives the
child into his home and openly holds the child out as his own.
Case law applies these presumptions gender neutrally. An
unmarried couple may also execute a voluntary declaration of
paternity, which has the same force and effect as a judgment of
paternity.
This bill seeks to resolve discrepancies that may occur when a
voluntary paternity declaration has been executed, but other
paternity presumptions also exist. Under current law, the
voluntary declaration generally trumps other paternity
presumptions, with the exception of the marriage presumption,
and this has led to confusion and has allowed parties,
potentially inappropriately, to manipulate who a child's legal
parent is. This bill requires a court, when there is both a
signed voluntary paternity declaration and a presumed father, to
weigh which of the men is the appropriate legal father of the
child, based on the best interests of the child and the
weightier considerations of logic and policy. This bill allows
courts to make the right decisions for children. This bill is
supported by the National Center for Lesbian Rights. Capitol
Resource Family Impact and Capitol Resource Institute oppose the
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bill, arguing that it limits the rights of biological fathers.
SUMMARY : Allows a third party to challenge a voluntary
declaration of paternity. Specifically, this bill :
1)Provides that a presumed father may seek to set aside a
voluntary paternity declaration, within two years of its
execution. In determining whether to set aside the
declaration of paternity, the court shall consider the
validity of the paternity declaration and the best interests
of the child, based on, among other things:
a) The age of the child;
b) The nature, duration, and quality of any relationship
between the child and the presumed father, as well as the
man who executed the voluntary paternity declaration; and
c) The benefit or detriment to the child in continuing the
relationship with either man.
2)Requires, in the event of a conflict between a presumption of
paternity and a voluntary paternity declaration, that the
weightier considerations of logic and policy control.
3)Provides that a voluntary paternity declaration is invalid if,
at the time the declaration is signed, the marriage
presumption applies or the man signing the declaration is a
sperm donor not married to the mother, except if the man and
the mother sign an agreement prior to conception that he be
considered the child's father.
4)Provides that a donor of semen for a child conceived by
artificial insemination or in vitro fertilization, other than
a child conceived by the donor's wife, is not considered the
child's father, unless the mother and the donor agreed
otherwise in a writing signed prior to conception.
EXISTING LAW :
1)Provides that the child of a wife who is living with her
husband, who is not sterile, is conclusively presumed to be a
child of the marriage, except as provided. A motion to
challenge paternity must be brought within two years of the
child's birth. (Family Law Code Sections 7540-41. Unless
otherwise stated, all further references are to that code.)
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2)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.)
3)Provides that paternity may be established by voluntary
declaration for unmarried parents, or through a civil action
brought by any interested party, as specified. (Sections
7630, 7570 et seq.)
4)Provides that a motion seeking genetic testing to contest
either a presumption of paternity under Sections 7540 or 7611,
or a voluntary declaration of paternity, must be filed within
two years of the birth of the child. (Sections 7541, 7575.)
5)Provides that, notwithstanding any other provision of law, a
mother, previously established father, child, or legal
representative of any of them may move to set aside a judgment
establishing paternity, including a voluntary declaration of
paternity, if genetic testing indicates that the previously
established father is not the biological father of the child,
or in order to request a genetic test. Such a motion must be
filed: (1) within two years of the date on which the
previously established father knew or should have known of a
judgment that established him as the father or the date on
which he knew or should have known of the existence of an
action to adjudicate the issue of paternity, whichever is
first; or (2) within two years of the date of the child's
birth if paternity was established by a voluntary declaration
of paternity, except as otherwise provided. (Section 7646.)
6)Provides that, if the court finds that genetic testing
indicates that the previously established father is not the
biological father of the child, the court nevertheless may
deny the motion to set aside the previous judgment
establishing paternity (including a voluntary declaration of
paternity) if the court determines that denial is in the best
interests of the child, after considering of the following
factors:
a) The age of the child;
b) The length of time since the entry of the judgment
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establishing paternity;
c) The nature, duration, and quality of any relationship
between the previously established father and the child,
including the duration and frequency of periods when the
two lived together or enjoyed a parent-child relationship;
d) The request of the previously established father that
the parent-child relationship continue;
e) Notice by the biological father of the child that he
does not oppose preservation of the relationship between
the previously established father and the child;
f) The benefit or detriment to the child in establishing
biological parentage;
g) Whether the conduct of the previously established father
has impaired the ability to ascertain the identity of, or
get support from, the biological father; and
h) Any additional factors deemed by the court to be
relevant to its determination of the best interest of the
child. (Sections 7575, 7648.)
7)Provides that the donor of sperm provided to a licensed
physician or sperm bank for use in artificial insemination or
in vitro fertilization of a woman, other than the donor's
wife, is not treated as the child's natural father. (Section
7613.)
COMMENTS : This bill seeks to level the playing field between
possible parents, based on legal presumptions. Under current
law, a man is a presumed father if he is married to the mother
when the child is conceived. That presumption becomes
conclusive within two years of the birth. A man may also be a
presumed father if he receives the child into his home and
openly holds the child out as his own. The paternity
presumptions generally apply gender neutrally, so, despite the
statutory language, they can apply equally to men and women.
(See Elisa B. v. Superior Court (2005) 37 Cal.4th 108.) An
unmarried couple can also execute a voluntary declaration of
paternity, which has the same force and effect as a judgment of
paternity.
This bill seeks to resolve discrepancies that may occur when a
voluntary paternity declaration has been executed, but there are
also other presumed parents. Under current law, the voluntary
declaration generally trumps paternity presumptions, other than
the marriage presumption, and this has led to confusion and has
allowed parties, potentially inappropriately, to manipulate who
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a child's legal parent is.
The author writes:
The voluntary declaration of paternity is a tool used to
make it easier for a man to claim paternity, and it exists
because the state has decided that legal paternity is in
the best interest of the child. The policy question
illuminated by this bill is whether or not a genetic
paternity, as established in the voluntary declaration,
should always be the most important consideration in
awarding legal paternity. The voluntary declaration of
paternity, however, was not designed with paternity
disputes in mind, and the endless permutations of
parent-child litigation does not lend itself to the blanket
policy that one type of paternity presumption should always
override another type, as current law does. The best
interest of the child is served by allowing the courts to
decide, when faced with conflicting paternity presumptions,
the best interest of the child. . . .
AB 1349 gives courts the flexibility to decide legal
paternity on a case-by-case basis and so protect the
interests of California's children.
Recent case law has determined that a voluntary paternity
declaration trumps other paternity presumptions . Under existing
law, a voluntary declaration of paternity declaration is not a
simple presumption of paternity that can be balanced against the
other paternity presumptions. Instead it has the force and
effect of a judgment and trumps other presumptions unless set
aside under limited circumstances.
The recent case of Kevin Q. v. Lauren W. (2009) 174 Cal. App.
4th 1557 exemplifies the concerns that can arise when a
voluntarily executed document takes precedence over carefully
crafted legal presumptions. In that case, the mother's former
boyfriend who was present at the child's birth, lived with the
mother and the child, and openly held the child out as his own,
brought an action to establish paternity as a presumed father
under Section 7611after the mother moved out with the child. At
least a year into that litigation, mother and the biological
father, who did not appear to have any relationship with the
child, executed a voluntary paternity declaration. The court
found that despite the biological father's lack of relationship
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with the child, the valid declaration of paternity had the force
of a judgment and, as a result, trumped the former boyfriend's
presumption of paternity. The mother was effectively able to
end all of her former boyfriend's contact with the child by
executing the voluntary paternity declaration, even though the
declaration was executed long after the boyfriend had sought
custody and, apparently, for the purpose of frustrating the
boyfriend's claims to the child.
This bill seeks to end the absolute priority that a voluntary
declaration of paternity has over other paternity claims. While
current law requires that a voluntary declaration have the same
force and effect as a paternity judgment, in reality it does not
involve the weighing that a court would do when deciding on a
petition to establish parentage. As the above case illustrates,
it can be signed at any time, for any reason, and still have the
force and effect of a judgment.
This bill allows a presumed father to bring an action to set
aside a voluntary paternity declaration, if done within two
years of the declaration's execution. The court must then
decide whether to set aside the paternity declaration. In
making that determination, the court must consider the validity
of the paternity declaration and the best interests of the
child, based on, among other things, the age of the child; the
nature, duration, and quality of any relationship between the
child and the presumed father, as well as the man who executed
the voluntary paternity declaration; and the benefit or
detriment to the child in continuing the relationship with
either man. In the event of a conflict between a presumption of
paternity and a voluntary paternity declaration, this bill
provides that the weightier considerations of logic and policy
control.
If this bill had been law, the court in Kevin Q. would have
weighed which of the men should be the legal father of the
child, based on the best interests of the child. This bill
allows courts to make the appropriate decisions for children.
However, in order to provide for finality, this bill does not
allow for an open ended period to challenge a voluntary
declaration. Challenges must be made within two years of a
declaration's execution. This is consistent with the timeframe
to challenge other paternity presumptions.
The voluntary paternity declaration is supposed to be limited to
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unmarried parents only, but some married women have executed the
declaration . Existing law attempts to prevent a married woman
from executing a paternity declaration. The form itself states:
"It should be signed by the biological mother only if she is
not married. It may be signed by the biological father
regardless of his marital status." A recent appellate court
found that a voluntary declaration executed by a married woman
was voidable. (H.S. v. Superior Court of Riverside County
(2010) 183 Cal. App. 4th 1502.) In that case, the mother had
given birth while she was separated from her husband and, after
the couple reconciled and held the child out as their own, tried
to rescind the declaration. The trial court ordered genetic
tests to determine the child's paternity. The court of appeals
quashed the order for genetic testing, determining that, at
least in some circumstances, recognizing a voluntary paternity
declaration executed by a married woman undermines the state's
interest in preserving marriages and the marital presumption of
paternity.
This bill seeks to address this issue more clearly by declaring
that a voluntary paternity declaration is invalid if, at the
time the declaration is signed, the marriage presumption
applies.
This bill allows a man to consent to being the father of a child
conceived through a sperm donation . Under existing law, if a
sperm donor is not married to the woman undergoing artificial
insemination or in vitro fertilization, he will not be
considered the father of the child (unless he falls within one
of the paternity presumptions). However, unmarried couples may
choose to have a child through sperm donation and current law
limits the man's ability to be declared the father of any child
so conceived. This bill allows the man to be considered the
father if the man and woman agree, in a writing signed prior to
conception. This change helps effectuate the parties' wishes.
In order to ensure that a voluntary paternity declaration is not
misused and to help ensure consistency in the code, this bill
declares that a voluntary paternity declaration is invalid if it
was signed by the sperm donor, unless the man and woman sign in
writing prior to conception that both parties intend that the
donor be the child's father.
ARGUMENTS IN SUPPORT : Writes Equality California:
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AB 1349 would correct the harmful interpretation of
California law in the Kevin Q. decision and clarify that
when a child has both a presumed parent and a parent who
has signed a voluntary declaration of paternity the courts
must consider both claims and must weigh the competing
claims based on the same standards applied in all other
cases when there are competing claims of parentage. This
bill would ensure that California's parentage laws continue
to protect and preserve children's established family
relationships.
ARGUMENTS IN OPPOSITION : Capitol Resource Family Impact and
Capitol Resource Institute write in opposition:
AB 1349 sets a dangerous precedent in denying biological
fathers the right to equal responsibility to support the
child as well as equal right to custody of the child. The
bill would invalidate and essentially eliminate a voluntary
declaration of paternity thus denying a biological father's
desire to be involved in his child's life.
REGISTERED SUPPORT / OPPOSITION :
Support
Academy of California Adoption Lawyers (co-sponsor)
Equality California (co-sponsor)
National Center for Lesbian Rights
Opposition
Capitol Resource Family Impact
Capitol Resource Institute
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334