BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1476 (Leno)
As Introduced
Hearing Date: May 8, 2012
Fiscal: No
Urgency: No
NR
SUBJECT
Family Law: Parentage
DESCRIPTION
This bill would authorize a court to find that a child has two
presumed parents if the court finds that it is in the best
interests of the child based on the nature, duration, and
quality of the presumed or claimed parents' relationships with
the child and the benefit or detriment to the child in
continuing those relationships.
This bill would provide that a child may have a parent-child
relationship, as defined by the Uniform Parentage Act, with more
than two parents.
This bill would require, in the case of a child with more than
two legal parents, the court to allocate custody and visitation
among the parents based on the best interest of the child,
including stability for the child. This bill would require, in
the case of a child with more than two legal parents, the court
to divide child support obligations among the parents based on
the statewide uniform guidelines, adjusted to permit recognition
of more than two parents.
BACKGROUND
Existing law provides a number of ways individuals can be
recognized as legal parents, including, in some situations,
people who are not biological parents. A man is presumed to be
the father of a child in a variety of situations. For example,
a man is conclusively presumed to be the father of a child if he
(more)
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was married to and cohabitating with the child's mother, except
as specified. A man who is married to or attempts to marry a
mother before or after the birth of the child, and receives and
holds the child out as his own, is also presumed a father of the
child. Finally, a man who signs a voluntary declaration of
paternity is presumed to be the legal father of a child. These
latter two presumptions are rebuttable by a judgment
establishing that another man is the biological father.
Under the California Uniform Parentage Act, there are a number
of parental presumptions that can apply to non-biological
parents. A person in a registered domestic partnership with a
birth mother at the time of birth is presumed a legal parent.
Also, a person who enters into a registered domestic partnership
with a birth mother after the time of birth is presumed a legal
parent, if he or she is listed on the birth certificate or is
obligated to support the child as specified. Finally, a person
who receives a child into his or her home and holds the child
out as his or her own is presumed to be a legal parent.
Because of the presumptions of paternity available under law, it
is possible for more than two people to have claims to
parentage. The Family Code provides that where two or more
presumptions arise that are in conflict with each other, the
presumption which on the facts is founded on the weightier
considerations of policy and logic controls. (Fam. Code. Sec.
7612(b).) However, the methods by which policy and logic control
are not established. In Elisa B. v. Superior Court (2005), the
California Supreme Court noted that the question of whether a
child could have more than two legal parents, was undecided.
(37 Cal.4th108, 118, fn.4.) However, in 2011 a Court of Appeal
held that when two or more people meet the legal definition of a
parent, a court may recognize only two of them as legal parents.
(In re M.C. (2011) 195 Cal.App.4th 197.)
Currently, four other states have recognized that there are
situations where a child can have more than two people in his or
her life with the rights and responsibilities of parents. In
2007 a Pennsylvania court upheld an award of primary custody to
a biological mother's same-sex partner, with partial custody to
the biological mother and sperm donor, who had been involved as
a parent since infancy. The court held that all three had an
obligation to support the child. (Jacob v. Shultz-Jacob 923 A.2d
473 (Pa. Super. 2007).) In C.E.W. v. D.E.W. a Maine court
explained that a child may have a non-biological parent with all
the rights and responsibilities of parentage in addition to two
legally-recognized biological parents. (845 A.2d 1146, 1149-51
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(Me. 2004).) Delaware recognizes three types of legal parents
under statute: a natural parent, an adoptive parent, and a de
facto parent. Under Delaware code, a de facto parent is a
person who had the support and consent of the child's parent or
parents who fostered a parent-like relationship between the
child and the de facto parent; exercised parental responsibility
for the child, as specified; and has acted in a parental role
for a length of time sufficient to have established a bonded and
dependent relationship with the child that is parental in
nature. (Del. Title 13, Secs. 8-201, 8-202.) Similarly, the
District of Columbia recognizes that a de facto parent has the
same rights and responsibilities of parents. (DC ST Sec.
16-831.01)
This bill would provide that where there are more than two
people who have established claims or presumptions of parentage
under existing California law, the court may recognize more than
two parents if doing so is required to protect the best
interests of the child.
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CHANGES TO EXISTING LAW
1.Existing law establishes the Uniform Parentage Act. (Fam.
Code Sec. 7600 et seq.)
Existing law defines a parent and child relationship as the
legal relationship existing between a child and the child's
natural or adoptive parents incident to which the law confers
or imposes rights, privileges, duties and obligations. The
term includes the mother and child relationship and the father
and child relationship. (Fam. Code Sec. 7601.)
This bill would provide that nothing in the above mentioned
section shall be construed to preclude a finding that a child
has a parent and child relationship with more than two
parents.
2.Existing law provides that domestic partners shall have the
same rights, protections, and benefits, and shall be subject
to the same responsibilities, obligations and duties under law
as are granted to and imposed on spouses. (Fam. Code Sec.
297.5.)
Existing law provides that a parent and child relationship
between the child and the mother may be established by proof
of her having given birth to the child. Existing law provides
that a parent and child relationship between the child and an
adopted parent may be established by proof of adoption. (Fam.
Code Sec. 7610.)
Existing law provides that a man is presumed to be the natural
father if:
he and the child's natural mother are or have been
married to each other and the child is born during the
marriage or within 300 days after the marriage is
terminated;
before the child's birth, he and the child's natural
mother have attempted to marry each other and the child
is born before or within 300 days of the marriage being
declared invalid ;
after the child's birth, he and the child's mother
married or attempted to marry and he is named as the
father on the child's birth certificate or he is
obligated to support the child by voluntary promise or
order of the court;
he receives the child into his home and openly holds
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the child out as his natural child; or
he signs a voluntary declaration of paternity. (Fam.
Code Sec. 7611.)
Existing law provides that where two or more presumptions of
paternity conflict under existing law, the presumption which
on the facts is founded on the weightier considerations of
policy and logic controls. (Fam. Code Sec. 7612(b).)
Existing law provides that a presumption of parentage found
under Family Code Section 7611 is rebutted by a judgment
establishing paternity of the child by another man. (Fam. Code
Sec. 7612(c).)
This bill would provide, that unless a court finds otherwise,
a presumption under Family Code Section 7611 is rebutted by a
judgment establishing paternity of the child by another man.
This bill would provide that where two or more claims or
presumptions of parentage have been established, a court may
find that a child has more than two parents if it is required
to serve the best interests of the child. This bill would
require the court to consider, in determining the best
interest of the child, the nature, duration, and quality of
the presumed or claimed parents' relationships with the child,
and the benefit or detriment to the child of continuing those
relationships.
1.Existing law outlines factors the court shall consider in
determining the best interest of the child, including:
the health, safety, and welfare of the child;
any history of abuse by one parent or any other
person seeking custody against another child, the other
parent, a spouse or significant other (corroborated by
evidence as specified);
the nature and amount of contact the child has with
both parents;
the habitual or continual illegal use of controlled
substances or habitual or continual abuse of alcohol by
either parent (corroborated by evidence as specified);
and
any other factors the court finds relevant.
Existing law provides that custody of a child should be
granted in the following order of preference: to parents
jointly; to either parent taking into consideration which
parent is more likely to allow the child frequent and
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continuing contact with the noncustodial parent; to the person
in whose home the child has been living in a wholesome and
stable environment. Existing law provides that the court and
the family use the widest discretion to choose a parenting
plan that is in the best interest of the child. (Fam. Code
Sec. 1476.)
This bill would provide that in cases where a child has more
than two legal parents, the court shall allocate custody and
visitation among the parents based on the best interest of the
child, including, but not limited to stability for the child.
This bill would provide that this may mean that not all
parents share legal or physical custody of the child.
1.Existing law provides a statewide uniform guideline with
respect to child support, which include a parent's obligation
and responsibility to support his or her child, the
presumption that a parent with primary custody contributes a
significant amount of financial resources to the children, and
that because children should share in the standard of living
of both parents, child support may therefore improve the
standard of living of the custodial household. (Fam. Code Sec.
4053.)
Existing law provides that the Judicial Council shall
periodically review the statewide uniform guideline to
recommend to the legislature appropriate revisions. In
developing its recommendations, the Judicial Council shall
seek public comment and be guided by the legislative intent
that children share in the standard of living of both of their
parents. (Fam. Code Sec. 4054.)
Existing law provides a formula for calculating child support,
and provides a rebuttable presumption that the formula results
in a correct amount. This presumption can be rebutted by,
among other factors, the fact that application of the formula
would be unjust or inappropriate due to special circumstances.
(Fam. Code Secs. 4055, 4057.)
This bill would provide, that in any case in which a child has
more than two legal parents, the court shall divide the child
support obligations among the parents based on income and the
amount of time spent with the child by each parent, according
to the principles set forth in existing law, adjusted to
permit recognition of two parents.
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COMMENT
1.Stated need for the bill
In support of this bill, the author writes:
Families are formed in many different ways that were not
considered when the parentage laws were written. Meanwhile,
courts see these situations on a daily basis and need more
tools to protect the best interests of children. ?
SB 1476 protects children by allowing judges, based on the
evidence, to recognize the bonds between children and their
parents. Recognition of legal parenthood also gives the
child the right to support from all her parents, as well as
access to health insurance, benefits, and inheritance rights.
Recognizing these families can also reduce the state's
financial responsibility for the child because all parents
have the obligation to support the child. In dependency
actions, if a child has more than two parents, legal
acknowledgement of more than two of those parents may keep
the child out of foster care by giving the court more options
for placement.
2.The number of cases this bill will affect is limited by two
provisions of the bill.
Existing law provides that a presumption of parentage is
rebutted by a judgment establishing paternity of the child by
another man. (Fam. Code Sec. 7612(c).) This bill would authorize
a court to not rebut a presumption of paternity, if the court
finds that the best interest of the child requires that the
child have more than two legal parents.
Although most children have two legal parents, there are many
children who have more than two people who act as parents. For
example, a man who started dating a woman while she was pregnant
may raise the child with the mother, while the child is also
encouraged to develop a relationship with his or her biological
father. Two women in a relationship may also decide to conceive
a child with a male friend, with the intent that all three of
them raise the child together.
The Association of Family Conciliation Courts (AFCC) has
expressed concern that "this bill does not provide for any
limitation of these potential parents. A child's time can
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barely be handled effectively between two conflicted parents,
and often the children are caught in the middle. If three or
four different people with "parental" claims have differing
perspectives regarding the child we will have created an
untenable situation for the child and an even greater degree of
conflict."
The author responds that this bill contains two provisions that
will significantly limit the number of families who meet the
requirements to qualify as a family with more than two legal
parents. First, potential parents must meet an existing
presumption of parentage before a court may consider whether
they may be legal parents. Secondly, the court may only allow
for more than two natural parents where the best interests of
the child require that it do so.
a) Under this bill, the presumptions of parentage under
existing law will not change
Existing law provides that a mother is a parent by proof of
having given birth to a child, and provides a variety of ways
that a father can be presumed a parent. (See Background; Fam.
Code Secs. 7610 and 7611.) Existing law also provides that
domestic partners have the same rights, protections, and
benefits, and responsibilities, obligations and duties under
law as spouses. (Fam. Code Sec. 297.5.) Accordingly, a woman
who is a registered domestic partner may be presumed to be a
mother of a child that her partner gives birth to. (Fam. Code
Secs. 7611(b), 297.5.) A person who registered as a domestic
partner with the birth mother after the birth of a child, if
he or she is also listed on the birth certificate or is
obligated to support the child, will also be presumed a
parent. (Fam. Code Secs. 7611(c), 297.5.) Because this bill
affects only how presumptions of paternity are rebutted, it
will not affect step-parent adoptions or other types of
visitation that may be awarded by courts to family members.
It is the author's intent that this bill affect only the legal
status of adults who meet existing presumptions of parentage.
In situations where non-biological adults are acting as
parents, and fit in one of the presumptions of parentage
outlined by law, more than two adults can have a claim of
parentage. The number of potential parents is limited,
however, by the number of persons who can claim parentage. It
is difficult to think of a situation where a non-biological
parent who does not live with the child and the child's
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natural parent will qualify as a presumed parent.
Additionally, existing law anticipates the situation where two
or more presumptions of paternity conflict under the Family
Code, and provides the following guidance: the presumption
which on the facts is founded on the weightier considerations
of policy and logic controls. (Fam. Code Sec. 7612(b).)
Courts therefore, under current law, apply a critical analysis
to situations where more than two presumptions exist. This
bill would add to the court's considerations that a court may
find more than two parents if required to serve the best
interest of the child.
b) The court may only find that a child has more than two
parents if required by the best interest of the child
Existing law provides a number of factors a court shall
consider when determining what is in the best interest of a
child including: the health, safety, and welfare of the child;
any history of abuse by one parent, a spouse, or significant
other; the nature and amount of contact with both parents;
substance abuse issues of either parent; and any other factors
the court finds relevant. (See Background.)
This bill would require, when more than two adults have a
claim to parentage, the court to consider the best interests
of the child, and find that the child has more than two legal
parents only if the best interest of the child requires that
finding. In determining the best interest of the child, the
court shall consider the nature, duration and quality of the
presumed or claimed parents' relationships with the child and
the benefit or detriment to the child in continuing those
relationships. Presumably, this is in addition to the
standard factors a court considers when determining what
action is in a child's best interest.
Under this bill, unless a court finds that a child's best
interest requires a finding of more than two legal parents, a
presumption of paternity may be rebutted as it currently is
under existing law, by a judgment establishing paternity of
the child by another man. A finding of more than two legal
parents, therefore, is largely up to the discretion of the
court. Because under this bill where a court finds more than
two legal parents, the judge is not mandated to find that a
child has more than two legal parents, the number of families
with more than two legal parents will likely be limited by
judicial discretion.
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1.Family law and courts adapt to changing dynamics of families
The definition of family is evolving. There are many different
types of modern families when compared with the understanding of
family from a few generations ago. This bill would authorize
the court to find that a child has more than two legal parents,
if required to serve the best interests of the child. Family
law has adapted in many ways to accommodate the changing
definition of what constitutes a family, including expanding
presumptions of parentage to encompass non-married fathers, and
laws relating to surrogate mothers and sperm donors. California
law also requires that domestic partners have the same rights,
protections, and benefits, responsibilities, and duties under
law as are granted to spouses. (Fam. Code Sec. 297.5.)
The opposition to this bill is concerned that unintended
consequences of this bill will be overly burdensome on the
courts. The Association of Certified Family Law Specialists
(ACFLS) argues that "parentage can be litigated in all sorts of
proceedings and legal parentage may include different rights in
other areas of federal and state law, including citizenship, tax
deductions, social security, educational proceedings, probate,
wrongful death, and so on. A statute expanding legal parenthood
has to thoughtfully consider the implications in these myriad of
other contexts." On a similar note, regarding the issue of
child support, the AFCC argues that, "Ýt]he current statewide
guideline is not set up to handle child support between more
than two parents. The courts have no money and there is no one
to pay for totally overhauling the existing formula, software,
etc. to make such a law effective."
It is clear, however, that courts do recognize more than two
legal parents in at least two situations. First, four other
states have recognized that a child may have more than two legal
parents. (See Background.) Under the Full Faith and Credit
clause, California is required to honor the acts and judicial
proceedings of the courts of other states. Additionally, courts
currently recognize tribal customary adoption. Tribal customary
adoption, in an aim to protect both Native American children and
their interests in having tribal membership and legal
connections to the tribal community, provides that a parent's
rights need not be terminated upon adoption of the child. (Welf.
& Inst. Code Sec. 294.) Accordingly, a Native American child may
have up to four legal parents-two natural parents and two
adoptive.
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Drafting custody orders and determining child support for a
child with more than two legal parents is not the standard
practice of courts, and therefore, may take more time or
resources. In fact, a formula exists for calculating child
support, and is based on the assumption of two parents. (Fam.
Code Sec. 4055.) Because deviations from standard practice can
take more time and energy, the provisions of this bill may
impose additional burdens on the courts. This burden is
tempered, however, by the limited number of cases which will
qualify. (See Comment 2.) Additionally, existing law provides
exceptions to this general child support formula if the using
the formula would be unjust or inappropriate due to special
circumstances. The situation where a child has more than two
legal parents is arguably a special circumstance. This bill
would require in these, situations, the court adjust the formula
to permit the recognition of more than two parents.
2.Bill should be sent back to Senate Rules Committee for
consideration of request from Senate Appropriations Committee
The Senate Appropriations Committee has indicated that this bill
may have a fiscal impact. As a result, should the Committee
approve the bill, the motion should be to send the bill back to
the Senate Rules Committee for consideration of the re-referral
request from the Appropriations Committee.
Support : California Alliance of Child and Family Services;
Children's Advocacy Institute at the University of San Diego Law
School; Legal Services for Children; National Association of
Counsel for Children; Our Family Coalition; one individual
Opposition : Association of Certified Family Law Specialists;
Association of Family Conciliation Courts; one individual
HISTORY
Source : National Center for Lesbian Rights; University of San
Diego Children's Advocacy Institute
Related Pending Legislation : None Known
Prior Legislation : None Known
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