BILL NUMBER: SB 375	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 14, 2011

INTRODUCED BY   Senator Wright

                        FEBRUARY 15, 2011

   An act to amend Sections  7541 and 7570 of  
7541, 7570, 7575, and 7630 of, and to add Section 7646.5 to, 
the Family Code, relating to paternity.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 375, as amended, Wright. Paternity.
   Existing law establishes a  conclusive  presumption that
a man is the natural father of a child if he and the natural mother
of the child are married and the child is born during the marriage
, or if he signs a voluntary declaration of paternity, as
provided  . Under existing law,  this presumption
  these presumptions  of paternity may be rebutted
by genetic evidence that another man is the biological father of the
child. Existing law requires that a motion for genetic tests be filed
not later than 2 years after the birth of the child  , 
 as specified  .
   This bill would  , notwithstanding those provisions, 
authorize a presumed father to file a motion for genetic tests within
 a reasonable time   2 years  after he
becomes aware of facts that lead him to reasonably believe that he
may not be the biological father of the child. 
   Existing law provides that, except as to cases in which paternity
is presumed under the conclusive presumption described above,
specified persons, including a man alleged or alleging himself to be
the father, may bring an action to determine the existence of the
father and child relationship.  
   This bill would delete that exception, thereby authorizing those
persons to bring an action to determine the existence of the father
and child relationship in a case in which another man is presumed to
be the father.
   Existing law declares that there is a compelling state interest in
determining paternity for all children.
   This bill would instead declare that there is compelling state
interest in determining biological paternity for all children, and
would further declare that establishing paternity for biological
fathers would increase respect for the judicial system.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) Genetic testing, using DNA evidence, is recognized as
scientifically valid by the courts of this country.
   (b) In the year 2000, the State of California recognized the
validity of DNA testing and created a procedure for an individual
convicted of certain crimes to petition a court to reopen his or her
case in order to reevaluate DNA evidence.
   (c) A man who is adjudicated to be the father of a child by a
court in a paternity action when he is not actually the biological
father of the child may be financially liable for up to 18 years of
child support.
   (d) The American Association of Blood Banks reported that out of a
total of more than 280,000 cases evaluated in 1999, almost 30
percent of the genetic samples excluded the tested individual as the
biological father.
   (e) Thirty-seven states have more liberal and flexible statutes
than California and allow for paternity to be reevaluated using DNA
evidence.
   (f) Data from the Department of Child Support Services shows that
judgments in more than 87 percent of cases challenging paternity
during a two-year period were established by default.
   (g) Respect for the judicial system is greatly diminished when the
laws are inconsistent with regard to the use of scientifically valid
DNA testing and do not permit the correction of an injustice in a
paternity action, but do allow it in a criminal proceeding.
  SEC. 2.  Section 7541 of the Family Code is amended to read:
   7541.  (a) Notwithstanding Section 7540, if the court finds that
the conclusions of all the experts, as disclosed by the evidence
based on blood tests performed pursuant to Chapter 2 (commencing with
Section 7550), are that the husband is not the father of the child,
the question of paternity of the husband shall be resolved
accordingly.
   (b)  (1)     The
  Except as provided in Section 7646.5, the  notice
of motion for blood tests under this section may be filed not later
than two years from the child's date of birth by the husband, or for
the purposes of establishing paternity by the presumed father or the
child through or by the child's guardian ad litem. As used in this
subdivision, "presumed father" has the meaning given in Sections 7611
and 7612. 
   (2) Notwithstanding paragraph (1), a motion for blood tests may be
filed by the husband within a reasonable time after he becomes aware
of facts that lead him to reasonably believe that he is not the
biological father of the child. 
   (c) The notice of motion for blood tests under this section may be
filed by the mother of the child not later than two years from the
child's date of birth if the child's biological father has filed an
affidavit with the court acknowledging paternity of the child.
   (d) The notice of motion for blood tests pursuant to this section
shall be supported by a declaration under oath submitted by the
moving party stating the factual basis for placing the issue of
paternity before the court.
   (e) Subdivision (a) does not apply, and blood tests may not be
used to challenge paternity, in any of the following cases:
   (1) A case that reached final judgment of paternity on or before
September 30, 1980.
   (2) A case coming within Section 7613.
   (3) A case in which the wife, with the consent of the husband,
conceived by means of a surgical procedure.
  SEC. 3.  Section 7570 of the Family Code is amended to read:
   7570.  The Legislature hereby finds and declares as follows:
   (a) There is a compelling state interest in establishing
biological paternity for all children. Establishing paternity is the
first step toward a child support award, which, in turn, provides
children with equal rights and access to benefits, including, but not
limited to, social security, health insurance, survivors' benefits,
military benefits, and inheritance rights. Knowledge of family
medical history is often necessary for correct medical diagnosis and
treatment. Knowing one's biological father is important to a child's
development. Additionally, establishing paternity for the biological
father creates respect for the judicial system, while imposing the
financial obligation of child support on a party who medical evidence
has established is not the biological father generates disrespect
for the courts.  Courts are inherently limited to
establishing financial obligations; they are not capable of mandating
the maintenance of family relationships. 
   (b) A simple system allowing for establishment of voluntary
paternity will result in a significant increase in the ease of
establishing paternity, a significant increase in paternity
establishment, an increase in the number of children who have greater
access to child support and other benefits, and a significant
decrease in the time and money required to establish paternity due to
the removal of the need for a lengthy and expensive court process to
determine and establish paternity and is in the public interest.
   SEC. 4.    Section 7575 of the   Family Code
  is amended to read: 
   7575.  (a) Either parent may rescind the voluntary declaration of
paternity by filing a rescission form with the Department of Child
Support Services within 60 days of the date of execution of the
declaration by the attesting father or attesting mother, whichever
signature is later, unless a court order for custody, visitation, or
child support has been entered in an action in which the signatory
seeking to rescind was a party. The Department of Child Support
Services shall develop a form to be used by parents to rescind the
declaration of paternity and instruction on how to complete and file
the rescission with the Department of Child Support Services. The
form shall include a declaration under penalty of perjury completed
by the person filing the rescission form that certifies that a copy
of the rescission form was sent by any form of mail requiring a
return receipt to the other person who signed the voluntary
declaration of paternity. A copy of the return receipt shall be
attached to the rescission form when filed with the Department of
Child Support Services. The form and instructions shall be written in
simple, easy to understand language and shall be made available at
the local family support office and the office of local registrar of
births and deaths. The department shall, upon written request,
provide to a court or commissioner a copy of any rescission form
filed with the department that is relevant to proceedings before the
court or commissioner.
   (b) (1) Notwithstanding Section 7573, if the court finds that the
conclusions of all of the experts based upon the results of the
genetic tests performed pursuant to Chapter 2 (commencing with
Section 7550) are that the man who signed the voluntary declaration
is not the father of the child, the court may set aside the voluntary
declaration of paternity unless the court determines that denial of
the action to set aside the voluntary declaration of paternity is in
the best interest of the child, after consideration of all of the
following factors:
   (A) The age of the child.
   (B) The length of time since the execution of the voluntary
declaration of paternity by the man who signed the voluntary
declaration.
   (C) The nature, duration, and quality of any relationship between
the man who signed the voluntary declaration and the child, including
the duration and frequency of any time periods during which the
child and the man who signed the voluntary declaration resided in the
same household or enjoyed a parent-child relationship.
   (D) The request of the man who signed the voluntary declaration
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 man who signed
the voluntary declaration and the child.
   (F) The benefit or detriment to the child in establishing the
biological parentage of the child.
   (G) Whether the conduct of the man who signed the voluntary
declaration has impaired the ability to ascertain the identity of, or
get support from, the biological father.
   (H) Additional factors deemed by the court to be relevant to its
determination of the best interest of the child.
   (2) If the court denies the action, the court shall state on the
record the basis for the denial of the action and any supporting
facts.
   (3) (A)  The   Except as provided in Section
7646.5, the  notice of motion for genetic tests under this
section may be filed not later than two years from the date of the
child's birth by a local child support agency, the mother, the man
who signed the voluntary declaration as the child's father, or in an
action to determine the existence or nonexistence of the father and
child relationship pursuant to Section 7630 or in any action to
establish an order for child custody, visitation, or child support
based upon the voluntary declaration of paternity.
   (B) The local child support agency's authority under this
subdivision is limited to those circumstances where there is a
conflict between a voluntary acknowledgment of paternity and a
judgment of paternity or a conflict between two or more voluntary
acknowledgments of paternity.
   (4) The notice of motion for genetic tests pursuant to this
section shall be supported by a declaration under oath submitted by
the moving party stating the factual basis for putting the issue of
paternity before the court.
   (c) (1) Nothing in this chapter shall be construed to prejudice or
bar the rights of either parent to file an action or motion to set
aside the voluntary declaration of paternity on any of the grounds
described in, and within the time limits specified in, Section 473 of
the Code of Civil Procedure. If the action or motion to set aside a
judgment is required to be filed within a specified time period under
Section 473 of the Code of Civil Procedure, the period within which
the action or motion to set aside the voluntary declaration of
paternity must be filed shall commence on the date that the court
makes an initial order for custody, visitation, or child support
based upon a voluntary declaration of paternity.
   (2) The parent or local child support agency seeking to set aside
the voluntary declaration of paternity shall have the burden of
proof.
   (3) Any order for custody, visitation, or child support shall
remain in effect until the court determines that the voluntary
declaration of paternity should be set aside, subject to the court's
power to modify the orders as otherwise provided by law.
   (4) Nothing in this section is intended to restrict a court from
acting as a court of equity.
   (5) If the voluntary declaration of paternity is set aside
pursuant to paragraph (1), the court shall order that the mother,
child, and alleged father submit to genetic tests pursuant to Chapter
2 (commencing with Section 7550). If the court finds that the
conclusions of all the experts, as disclosed by the evidence based
upon the genetic tests, are that the person who executed the
voluntary declaration of paternity is not the father of the child,
the question of paternity shall be resolved accordingly. If the
person who executed the declaration as the father of the child is not
excluded as a possible father, the question of paternity shall be
resolved as otherwise provided by law. If the person who executed the
declaration of paternity is ultimately determined to be the father
of the child, any child support that accrued under an order based
upon the voluntary declaration of paternity shall remain due and
owing.
   (6) The Judicial Council shall develop the forms and procedures
necessary to effectuate this subdivision.
   SEC. 5.    Section 7630 of the   Family Code
  is amended to read: 
   7630.  (a) A child, the child's natural mother, a man presumed to
be the child's father under subdivision (a), (b), or (c) of Section
7611, an adoption agency to whom the child has been relinquished, or
a prospective adoptive parent of the child may bring an action as
follows:
   (1) At any time for the purpose of declaring the existence of the
father and child relationship presumed under subdivision (a), (b), or
(c) of Section 7611.
   (2) For the purpose of declaring the nonexistence of the father
and child relationship presumed under subdivision (a), (b), or (c) of
Section 7611 only if the action is brought within a reasonable time
after obtaining knowledge of relevant facts. After the presumption
has been rebutted, paternity of the child by another man may be
determined in the same action, if he has been made a party.
   (b) Any interested party may bring an action at any time for the
purpose of determining the existence or nonexistence of the father
and child relationship presumed under subdivision (d) or (f) of
Section 7611.
   (c)  Except as to cases coming within Chapter 1
(commencing with Section 7540) of Part 2, an   An 
action to determine the existence of the father and child
relationship may be brought by the child or personal representative
of the child, the Department of Child Support Services, the mother or
the personal representative or a parent of the mother if the mother
has died or is a minor, a man alleged or alleging himself to be the
father, or the personal representative or a parent of the alleged
father if the alleged father has died or is a minor.
   (d) (1) If a proceeding has been filed under Chapter 2 (commencing
with Section 7820) of Part 4, an action under subdivision (a) or (b)
shall be consolidated with that proceeding. The parental rights of
the presumed father shall be determined as set forth in Sections 7820
to 7829, inclusive.
   (2) If a proceeding pursuant to Section 7662 has been filed under
Chapter 5 (commencing with Section 7660), an action under subdivision
(c) shall be consolidated with that proceeding. The parental rights
of the alleged natural father shall be determined as set forth in
Section 7664.
   (3) The consolidated action under paragraph (1) or (2) shall be
heard in the court in which the proceeding under Section 7662 or
Chapter 2 (commencing with Section 7820) of Part 4 is filed, unless
the court finds, by clear and convincing evidence, that transferring
the action to the other court poses a substantial hardship to the
petitioner. Mere inconvenience does not constitute a sufficient basis
for a finding of substantial hardship. If the court determines there
is a substantial hardship, the consolidated action shall be heard in
the court in which the paternity action is filed.
   (e) (1) If any prospective adoptive parent who has physical
custody of the child, or any licensed California adoption agency that
has legal custody of the child, has not been joined as a party to an
action to determine the existence of a father and child relationship
under subdivision (a), (b), or (c), or an action for custody by the
alleged natural father, the court shall join the prospective adoptive
parent or licensed California adoption agency as a party upon
application or on its own motion, without the necessity of a motion
for joinder. A joined party shall not be required to pay a fee in
connection with this action.
   (2) If a man brings an action to determine paternity and custody
of a child who he has reason to believe is in the physical or legal
custody of an adoption agency, or of one or more persons other than
the child's mother who are prospective adoptive parents, he shall
serve his entire pleading on, and give notice of all proceedings to,
the adoption agency or the prospective adoptive parents, or both.
   (f) A party to an assisted reproduction agreement may bring an
action at any time to establish a parent and child relationship
consistent with the intent expressed in that assisted reproduction
agreement.
   SEC. 6.    Section 7646.5 is added to the  
Family Code   , to read:  
   7646.5.  Notwithstanding Sections 7540, 7541, 7573, 7575, and
7646, any presumed father may 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.