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 
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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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