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 AB 1349 Page 2 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.) AB 1349 Page 3 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 AB 1349 Page 4 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 AB 1349 Page 5 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 AB 1349 Page 6 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 AB 1349 Page 7 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: AB 1349 Page 8 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