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) SB 1476 (Leno) Page 2 of ? 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 SB 1476 (Leno) Page 3 of ? (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. SB 1476 (Leno) Page 4 of ? 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 SB 1476 (Leno) Page 5 of ? 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 SB 1476 (Leno) Page 6 of ? 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. SB 1476 (Leno) Page 7 of ? 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 SB 1476 (Leno) Page 8 of ? 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 SB 1476 (Leno) Page 9 of ? 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. SB 1476 (Leno) Page 10 of ? 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. SB 1476 (Leno) Page 11 of ? 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 ************** SB 1476 (Leno) Page 12 of ?