BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1349|
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THIRD READING
Bill No: AB 1349
Author: Hill (D)
Amended: 4/14/11 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-1, 6/14/11
AYES: Evans, Corbett, Leno
NOES: Harman
NO VOTE RECORDED: Blakeslee
ASSEMBLY FLOOR : 52-22, 5/2/11 - See last page for vote
SUBJECT : Paternity: conflicting presumptions
SOURCE : Academy of California Adoption Lawyers
Equality California
DIGEST : This bill authorizes 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 will 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
provides 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."
CONTINUED
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This bill provides that a voluntary declaration of
paternity is invalid if any of the following conditions
exist: (1) the child already has a presumed parent because
the child was born during a marriage; (2) the child already
has a presumed parent under Family Code Section 7611; or
(3) 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.
ANALYSIS : 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. (Family Code Section 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.
(Family Code Section 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.
(Family Code Section 7540.)
Existing law provides that the presumption of paternity can
be rebutted within two years of the birth of the child by
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. (Family Code Section 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.
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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.
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. (Family Code
Section 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.
(Family Code Section 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. (Family Code Section 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.)
This bill authorizes 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
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aside the voluntary declaration of paternity.
This bill provides 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 provides 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 provides 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).
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.
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. (Family Code Section
7613(b).)
This bill provides 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/15/11)
Academy of California Adoption Lawyers (co-source)
Equality California (co-source)
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Association of Family Conciliation Courts
Betty Yee, Member of the State Board of Equalization
National Center for Lesbian Rights
OPPOSITION : (Verified 6/15/11)
California Catholic Conference
Capitol Resource Family Impact
Capitol Resource Institute
ARGUMENTS IN SUPPORT : The author writes, "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
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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."
ARGUMENTS IN OPPOSITION : 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."
ASSEMBLY FLOOR :
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Campos, Carter, Cedillo, Chesbro, Davis,
Dickinson, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani,
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Galgiani, Gatto, Gordon, Hall, Hayashi, Roger Hernández,
Hill, Huber, Hueso, Huffman, Jeffries, Lara, Bonnie
Lowenthal, Ma, Mitchell, Monning, Pan, Perea, V. Manuel
Pérez, Portantino, Skinner, Solorio, Swanson, Torres,
Wieckowski, Williams, Yamada, John A. Pérez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Garrick, Grove, Harkey, Jones, Knight, Logue, Mansoor,
Miller, Morrell, Nestande, Nielsen, Norby, Olsen, Silva,
Smyth, Valadao, Wagner
NO VOTE RECORDED: Charles Calderon, Gorell, Hagman,
Halderman, Mendoza, Vacancy
RJG:do 6/15/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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