BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2011-2012 Regular Session AB 1349 (Hill) As Amended April 14, 2011 Hearing Date: June 14, 2011 Fiscal: No Urgency: No EDO SUBJECT Paternity: Conflicting Presumptions DESCRIPTION This bill would authorize a presumed father to bring a motion within two years of execution of a voluntary declaration of paternity to set aside that declaration. The court would be required to consider the best interests of the child as well as 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 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." This bill would provide that a voluntary declaration of paternity is invalid if any of the following conditions exist: the child already has a presumed parent because the child was born during a marriage; the child already has a presumed parent under Family Code Section 7611; or the man signing the declaration is a sperm donor and agreed to paternity of the child, in writing, prior to conception of the child, and signed by the donor and the woman. BACKGROUND It is the policy of the State of California to establish paternity for all children. The establishment of paternity (more) AB 1349 (Hill) PageB of? provides children with equal rights and access to benefits. (Fam. Code Sec. 7570.) However, it is also the policy of California that parentage goes beyond biology and extends to the relationship established between a child and a presumed parent or adoptive parent. Under existing law, a child born during a marriage to a wife who lives with her husband is conclusively presumed to be the child of the marriage. (Fam. Code Sec. 7540.) For a child born outside of a marriage, paternity may be established by a voluntary declaration of paternity or through another legal presumption of paternity. (Fam. Code Secs. 7573 and 7611.) This bill, co-sponsored by Equality California and the Academy of Adoption Lawyers of California, would allow a presumed, non-biological father, to bring a motion within two years of the execution of a voluntary declaration of paternity to set aside the declaration signed by the biological father. This bill would require that the court consider specified factors when determining whether to set aside the voluntary declaration of paternity. This bill would also make clarifying changes to the law regarding establishment of paternity through a voluntary declaration of paternity and sperm donors. CHANGES TO EXISTING LAW 1.Existing law provides that a voluntary declaration of paternity shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court. Existing law provides that the voluntary declaration of paternity shall be recognized as the basis for child custody, visitation, or child support. (Fam. Code Sec. 7573.) Existing law provides that a judgment establishing paternity may be set aside or vacated within a two-year period after the birth of the child if paternity was established by a voluntary declaration of paternity. (Fam. Code Sec. 7646.) Existing law provides that the child of a wife who lives with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. (Fam. Code Sec. 7540.) Existing law provides that the presumption of paternity can be rebutted within two years of the birth of the child by AB 1349 (Hill) PageC of? requesting a DNA test by either the presumed father or the mother. The court then has the discretion to set aside the judgment of paternity after considering the best interests of the child. (Fam. Code Sec. 7541.) Existing law provides that a man is presumed to be the natural father of a child in any of the following instances: he and the child's mother are married to each other when the child is born, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce; before the child's birth, he and the child's mother attempted to marry each other, although the attempted marriage is or could be declared invalid, and either the child is born during the attempted marriage or within 300 days after its termination, or if the attempted marriage is invalid without a court order and the child is born within 300 days after the termination of cohabitation; or after the child's birth, he and the mother have married or attempted to marry and with his consent he is named on the birth certificate as the child's father, or he has obligated to support the child in writing. (Fam. Code Sec. 7611 (a)-(c).) Existing law provides that a man is presumed to be the natural father of a child if he receives the child into his home and openly holds out the child as his natural child. (Fam. Code Sec. 7611(d).) Existing law provides that if two or more paternity presumptions arise, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. (Fam. Code Sec. 7612.) Existing case law provides that a voluntary declaration of paternity signed by the birth mother and biological father outweighs the presumption established by a non-biological father who has taken the child into his home and held the child out as his own. (Kevin Q. v. Lauren W. (2009) Cal.App.4th 1119, 1142.) Existing case law provides that a child, regardless of the statutory language, is not precluded from having two parents, both of whom are women. (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 119.) AB 1349 (Hill) PageD of? This bill would authorize a presumed father to bring a motion within two years of the execution of a voluntary declaration to set aside the declaration. The court would be required 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. This 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." 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. This bill would provide that if at the time the voluntary declaration of paternity is signed, the declaration would be invalid if any of the following conditions exist: the child already has a presumed parent because the child was born during a marriage; the child already has a presumed parent under Family Code Section 7611 (a)-(c); or the man signing the declaration is a sperm donor and agreed to paternity of the child, in writing, prior to conception of the child, and signed by the donor and the woman. 1.Existing law provides that the donor of sperm for use in artificial insemination or in vitro fertilization of a woman other than the donor's wife is treated as if he is not the natural father of the child. (Fam. Code Sec. 7613(b).) This bill would provide that a sperm donor, who is not the woman's husband, may agree in writing signed by the donor and woman prior to conception of the child, that the donor is the natural father of the child. COMMENT 1. Stated need for the bill The author writes: AB 1349 (Hill) PageE of? ŬThis bill] gives the courts the ability to decide what is in the best interest of the child in parenting conflicts. Mechanically, the bill allows a presumed parent to petition to have a voluntary declaration of paternity set aside for the purposes of the determination of legal paternity, the decision on which is to be made by the court on the basis of the nature, duration, and quality of the petitioner's relationship with the child and the benefit of the continued relationship. The bill also clarifies that the act of sperm donation . . . is not sufficient for consideration as a natural father-unless otherwise agreed to in writing prior to conception. In a custody battle between a mother and a presumed (non-biological) father, the mother can find the biological father, sign a voluntary declaration of paternity with him, and preclude the first man from participation in the child's life. Biological parents in same sex couples can use the same tactic to exclude the non-biological presumed parent. The voluntary declaration process was meant to facilitate the establishment of parentage in uncontested situations; it was never designed to address competing parentage presumptions. Equality California and the Academy of California Adoption Lawyers, co-sponsors of this bill, write, "Ŭthis bill] 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." In support of this bill, State Board of Equalization Member Betty Yee, writes, "the 'Protection of Parent-Child Relationship Act' will allow courts to have discretion in determining parentage disputes between presumed parents and biological fathers who have signed a voluntary declaration of paternity, and it will protect established family relationships among non-traditional families, including those in the Lesbian, Gay, Bisexual, and Transgender community." 2. This bill would address a recent court decision AB 1349 (Hill) PageF of? Under existing law, paternity may be established by various means. A common presumption of paternity arises when a child is born during a marriage. In that situation, existing law provides that the husband is presumed to be the father. When a child is born out of wedlock, paternity may be established through a voluntary declaration of paternity or by another legal presumption of paternity, including a father taking a child into his home, regardless of biology, and holding the child out as his own. Existing law also authorizes the court to consider the weightier of logic and policy when two conflicting rebuttable presumptions exist. a. Kevin Q. v. Lauren W. In Kevin Q. v. Lauren W. (2009) 174 Cal.App.4th 1557 the court held that a voluntary declaration of paternity took precedence over other statutory presumptions of paternity. Specifically, the court found that the voluntary declaration of paternity takes priority over the paternity presumption that arises when a man takes a child into his home and holds the child out as his own. In Kevin Q., a woman became pregnant with a man's child while she was in relationship with another man, her boyfriend. Her boyfriend was present for the birth of the child and took the woman and the child into his home. The boyfriend announced to friends and family that the child was his own and he and the woman cared for the child. After living together for nearly two years after the child's birth, the couple split up. The boyfriend instituted paternity proceedings to establish a parental relationship for custody and visitation of the child. The mother then signed a voluntary declaration of paternity with the biological father, who had had no contact with the mother or child since before the child's birth. In finding that the voluntary declaration of paternity took priority over the boyfriend's actions, the court stated, "no one can predict the consequences of the statutorily mandated result here. Perhaps the child will develop or retain a beneficial relationship with his biological father. On the other hand, if Ŭthe biological father] continues to be incommunicado, his 'parental rights may ultimately be terminated in Ŭa] dependency' or adoption process. . . Although a 'voluntary declaration may be a basis for a custody or visitation order, the statutory scheme on voluntary AB 1349 (Hill) PageG of? declarations does not in and of itself determine child custody'. . . In any event, our decision here is mandated by the Family Code. We may not rewrite the legislative scheme." The purpose of the voluntary declaration of paternity is to fulfill the public policy goal of establishing paternity for all children. This declaration was not meant to deny a parent the opportunity to not only have a relationship with a child, but to also be responsible for a child by providing financial support. In Kevin Q., the court found that an absentee father, who would not be paying child support<1>, was, by law, the child's father rather than finding the man who raised the child and provided financial support for the child to be the legal father. This decision was based solely on the voluntary declaration of paternity being signed by the biological father and mother. This bill would abrogate the court's ruling in Kevin Q. by allowing a presumed parent to request that a voluntary declaration of paternity be set aside within two years of its execution. This bill would allow the court to exercise its discretion when deciding whether or not to set aside the voluntary declaration of paternity by determining the best interests of the child as well as other specified factors. b. General reference to presumed paternity statute This bill would add Section 7612(d) to the Family Code which would provide that a presumed parent under Family Code Section 7611 may bring a motion within two years of the execution of a voluntary declaration of paternity to set aside that declaration. This bill would also add Section 7612 (e) to the Family Code which would provide that a voluntary declaration of paternity is invalid, if at the time the declaration was signed, the child already has a presumed parent because the child was born during a marriage or the child already has a presumed parent under Family Code Section 7611 (a)-(c), as described above. A question arose regarding the general reference to Family -------------------------- <1> The mother and biological father stipulated that child support would be unnecessary, but reserved the right to request child support in the future. (Kevin Q. v. Lauren W., (2009) 174 Cal.App.4th 1557, 1567.) AB 1349 (Hill) PageH of? Code Section 7611 in the newly proposed Family Code Section 7612(d) which allows a presumed parent to request that a voluntary declaration of paternity be set aside where there is any parental presumption under Family Code Section 7611, yet the newly proposed Family Code Section 7612(e) provides that a declaration is invalid when a presumption under 7611(a)-(c) exists at the time of signing the voluntary declaration of paternity. In response to this question, the author and sponsor write: 7612(d) would provide that a presumed parent under 7611 can file a petition to set aside a voluntary declaration of paternity signed by another man within two years. 7612(e)(1)-(2) state that a voluntary declaration of paternity is invalid if the child already has a presumed parent under Section 7540 or 7611(a)-(c), which are the presumptions based on marriage. These provisions clarify existing law that a voluntary declaration of paternity is not valid if the birth mother is married at the time the voluntary declaration is signed. 7612(d) provides for a set-aside action by a presumed parent under any subsection of 7611, regardless of whether the presumption existed at the time the declaration was signed. In practice, a set aside action will only be appropriate for presumptions under 7611(d), as well as 7611(c) when that presumption arises after a voluntary declaration is signed. Where there is a presumed parent under 7611(a)-(b), a set aside will never be appropriate because these presumptions arise at birth, and once they arise, another man cannot sign a valid voluntary declaration according to 7612(e). A presumption under 7611(c) may arise after birth, however, so it is possible that a valid declaration could be signed even if a presumption later arises under this section. When a voluntary declaration of paternity is invalid, the presumed parent may bring an action to establish parental relationship under the Uniform Parentage Act. 3. Paternity statutes can be applied gender neutrally Under existing law, the California Supreme Court has found that a child may have two parents of the same sex. (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 119.) In Elisa B., a lesbian couple entered into a relationship and decided to AB 1349 (Hill) PageI of? individually conceive children through an anonymous sperm donor. (Id. at 114.) Both became pregnant, with one partner, Elisa, giving birth to one child, and the other partner, Emily, giving birth to twins. (Id.) The children were born within months of each other, and as a result, both mothers cared for all three children and breastfed all three children. (Id.) The couple had decided that Elisa would be the breadwinner, working outside of the home, and that Emily would be a stay-at-home mother. (Id.) Elisa took Emily and the twins into her home and held the twins out as her own children. (Id.) After the couple ended their relationship approximately two years after the children's births, Elisa initially provided financial support for Emily and the twins, but eventually told her that she would no longer be financially supporting her and the twins. (Id. at 115.) Emily sought a judgment determining that Elisa was a parent to the twins, thus owing Emily child support. (Id.) The court compared the facts in the Elisa B. case to a prior holding by the court in In re Nicholas H. (2002) 28 Cal.4th 56, where the court determined that a non-biological parent who took his girlfriend's child into his home and held the child out as his own was the presumed parent in accordance with Family Code Section 7611 (d). In Nicholas H., the court found that the term "natural parent" did not always mean "biological parent." (Id. at 62-63.) Based on this case precedence, the court found that Elisa B. was the presumed parent of the twins, based on the parental presumption under Family Code Section 7611 (d), and was therefore responsible for paying child support for the twins. Based on the Elisa B. case precedence, any reference to a "presumed father," or "a man," under this bill or any of the parentage statutes, can be applied equally to a woman. This situation will most often arise as it did in the Elisa B. case which involved a lesbian couple who decided to start a family together, resulting in both parents being women. Applying the paternity statutes gender neutrally furthers the public policy of the state to ensure that all children have two parents. As it specifically applies to this bill, the practical effect is that a woman can request that a voluntary declaration of paternity be set aside within two years of its execution. 4. Bill clarifies existing law that the voluntary declaration of paternity only be used for unmarried women Under existing law, the voluntary declaration of paternity is meant only for an unmarried woman. The form specifically states AB 1349 (Hill) PageJ of? that "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." The purpose of allowing a married man to sign the form is of course to allow for the possibility that a married man may father a child with another woman out of wedlock. However, the purpose for disallowing a married woman to sign the voluntary declaration of paternity is to "preserve marriages and the marital presumption of paternity." (H.S. v. Superior Court of Riverside County (2010) 183 Cal.App.4th 1502.) In addition to preserving marriages and the marital presumption of paternity, the public policy of California is ensuring that every child has two parents. If a married woman has a child, the husband is presumed to be the father, thus the child has two parents, biological or not. However, if a woman has a child with a married man, (not her spouse) and the married man was prohibited from signing the voluntary declaration of paternity, then the child would be deprived of a father. This bill would clarify that a voluntary declaration of paternity is invalid if the marriage presumption of paternity applies, or if a presumption from Family Code Section 7611 (a)-(c) applies which also relates to a woman who is either married or has attempted to get married to the father of her child. Committee staff inquired of the author and sponsor regarding a potential conflict that could arise under this bill wherein a husband and wife have a child and divorce during the two year statutory period and the child is not the biological child of the husband. Would this bill invalidate a voluntary declaration of paternity signed by the biological father, since technically the marriage presumption applies to the child? In response to this question, the author and sponsor responded, "In a situation where a woman gave birth to a child while married and a court determined that the spouse was not a legal parent in a divorce proceeding, a voluntary declaration of paternity could be later signed by the biological father. In this situation, there would be no presumption of parentage for the former spouse at the time the declaration was signed, so 7612(e) would not apply. This specific situation is likely to be rare, however, because in these situations, a court will have already considered all possible claims of parentage, including any possible biological father, before determining that the spouse of the birth mother is not a parent." 5. This bill clarifies that a sperm donor can consent to being a AB 1349 (Hill) PageK of? father Under existing law, a man who donates sperm to a woman other than his wife is treated in law as if he is not the natural father of a child conceived. Existing law also provides that if a married woman, with her husband's consent, is artificially inseminated with semen donated by a man that is not her husband, the husband is treated in law as if he is the natural father of the child conceived. This bill would allow a man who donates sperm to consent to being the father of the child if agreed to in writing and signed by the donor and the woman prior to the conception of the child. This provision allows for the possibility that an unmarried couple may wish to have a child together through artificial insemination or in vitro fertilization. 6. Opposition's concerns The Capitol Resource Family Impact in association with Capitol Resource Institute, in opposition to the bill, argues, "Ŭthis bill] 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. The bill is flawed and seeks to undermine the federal appeals court case Kevin Q. v. Lauren W. which clearly sides with the biological father's rights." Also in opposition, the California Catholic Conference writes, "the very title of the bill, Paternity: conflicting presumptions, captures the legal quandary created with today's experimental families and our society's rejection of common law, history and tradition. Although this bill attempts to resolve the conflicts among paternity presumptions, the final decision ultimately may lie in an adult forum-the courts. Solutions imposed by those courts may be 'logical'-but in the case of same-sex coupled families, still deprive children of their right to know and live with their biological mother and father." Support : Association of Family Conciliation Courts; Betty Yee, Member of the State Board of Equalization; National Center for Lesbian Rights AB 1349 (Hill) PageL of? Opposition : California Catholic Conference; Capitol Resource Family Impact; Capitol Resource Institute HISTORY Source : Academy of California Adoption Lawyers; Equality California Related Pending Legislation : SB 375 (Wright) would allow for any presumed father to bring a motion for genetic testing to rebut the presumption of paternity within two years after he becomes aware of facts that lead him to reasonably believe that he is not the biological father of the child. This bill is currently in the Senate Judiciary Committee. SB 377 (Wright) would invalidate a voluntary declaration of paternity that is signed by a minor if it is not also signed by the parent or guardian of the minor parent. This bill is currently in the Senate Judiciary Committee. Prior Legislation : None Known Prior Vote : Assembly Floor (Ayes 52, Noes 22) Assembly Committee on Judiciary (Ayes 7, Noes 2) **************