BILL ANALYSIS Ó
AB 1349
Page 1
ASSEMBLY THIRD READING
AB 1349 (Hill)
As Amended April 14, 2011
Majority vote
JUDICIARY 7-2
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|Ayes:|Feuer, Atkins, Dickinson, | | |
| |Huber, Huffman, Monning, | | |
| |Wieckowski | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Jones | | |
| | | | |
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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
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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.
FISCAL EFFECT : None
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
a child's legal parent is.
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,
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brought an action to establish paternity as a presumed father
under Family Law Code Section 7611 after 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 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.
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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.
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.
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
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donor be the child's father.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0000366