BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1349
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          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