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)
**************