BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  June 26, 2012

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                      SB 1476 (Leno) - As Amended:  May 25, 2012

                              As Proposed to be Amended

           SENATE VOTE  :  24-13
           
          SUBJECT  :  Family Law: Parentage

           KEY ISSUE  :  SHOULD A COURT BE PERMITTED TO FIND THAT A CHILD HAS 
          MORE THAN TWO LEGAL PARENTS, IN THE VERY LIMITED SITUATIONS WHEN 
          MORE THAN TWO INDIVIDUALS MEET THE STANDARD TO BE THE CHILD'S 
          LEGAL PARENTS AND SUCH ACTION IS necessary to protect the best 
          interest of THE child? 

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS
          
          Legal parenthood can be established in a number of different 
          ways, and as a result, in limited situations it is possible for 
          more than two people to claim legal parentage of a child.  The 
          Family Code provides that where two or more presumptions of 
          paternity 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.  A recent Court of 
          Appeal court 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.)  
          This bill instead provides 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.  

          This bill is supported by children's advocacy groups who write 
          that the bill "protects children by recognizing the bonds they 
          share with their parents and the legal and emotional security 
          those bonds provide.  Recognizing legal parenthood gives a child 
          the right to support from his or her parents, reduces the 
          state's financial responsibility for the child, and keeps 
          children out of foster care by giving courts more options for 








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          placement."  Some family law practitioners, while supportive of 
          the bill's intentions, oppose it, arguing that it is extremely 
          broad and vague, and could have negative results that put 
          children in jeopardy:  "Because parentage law is so complicated, 
          it is difficult to attempt to change one aspect of it without 
          upsetting the entire framework.   . . . A statute expanding 
          legal parenthood has to thoughtfully consider the implications 
          in Ýa] myriad of other contexts."  However, courts today must 
          already recognize more than two parents in several, limited 
          instances.

           SUMMARY  :  Permits a court, in appropriate cases, to find that a 
          child has more than two legal parents.  Specifically,  this bill  : 


          1)Provides that nothing in the Uniform Parentage Act should be 
            construed to preclude a finding that a child has a 
            parent-child relationship with more than two parents.

          2)Allows a court to find that a presumption of paternity is not 
            necessarily rebutted by a judgment establishing paternity by 
            another person. 

          3)Provides that where two or more claims or presumptions of 
            parentage have been established, a court may find that a child 
            has more than two natural or adoptive parents if it is 
            required to serve the best interests of the child.  Requires 
            the court, in determining the best interest of the child, to 
            consider 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. 

          4)Provides that in any case 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.  States 
            that this may mean that not all parents share legal or 
            physical custody of the child.

          5)Provides that, in any case in which a child has more than two 
            legal parents, the court shall not use the child support 
            guideline, but should instead 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 








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            recognition of two parents.  Provides that this shall not be 
            construed to require reprogramming of the California Child 
            Support Automation System, a change in the guideline, or a 
            revision in any Department of Child Support Services' 
            regulation, policy, procedure, form or training material.

           EXISTING LAW  :

          1)Establishes the California Uniform Parentage Act (UPA).  
            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.  (Family Code Section 7600 et seq.  Unless 
            stated otherwise, all further statutory references are to that 
            code.)

          2)Provides that the child of a wife who is living with her 
            husband, who is not sterile, is conclusively presumed to be a 
            child of the marriage, except as provided.  (Sections 
            7540-41.)

          3)Defines a man as a presumed father if, among other things:  
            (a) He was married to the child's mother and the child was 
            born within 300 days of the marriage; (b) he attempted to 
            marry the child's mother; or (c) he holds the child out as his 
            own.  Requires that these presumptions be applied gender 
            neutrally.  (Section 7611; Elisa B. V. Superior Court (2005) 
            37 Cal.4th 108.)

          4)If two or more paternity presumptions conflict with one 
            another, the presumption that is founded on the weightier 
            considerations of policy and logic controls.  Provides that a 
            presumption of parentage under Section 7611 is rebutted by a 
            judgment establishing paternity of the child by another man.  
            (Section 7612.)

          5)Provides that paternity may be established by voluntary 
            declaration for unmarried parents, or through a civil action 
            brought by any interested party, as specified.  (Sections 
            7630, 7570 et seq.)

          6)Provides that domestic partners have the same rights, 
            protections, and benefits, and shall be subject to the same 








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            responsibilities, obligations and duties under law as are 
            granted to and imposed on spouses.  (Section 297.5.)
           
           7)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.  Provides that a parent and child 
            relationship between the child and an adopted parent may be 
            established by proof of adoption.  (Section 7610.)  
           
          8)Outlines factors the court shall consider in determining the 
            best interest of the child, including, among others, 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; the nature and amount of contact the child has with 
            both parents; and any other factors the court finds relevant.  
            (Section 3011.)

          9)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 continuing contact with the 
            noncustodial parent; to the person in whose home the child has 
            been living in a wholesome and stable environment.  Allows the 
            court and the family the widest discretion to choose a 
            parenting plan that is in the best interest of the child.  
            (Section 3040.)

          10)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.  
            (Section 4053 et seq.)

           COMMENTS  :  Legal parenthood can be established in a number of 
          different ways.  A man is conclusively presumed to be the father 
          of a child if he was married to, or in a registered domestic 
          partnership with, and cohabitating with the child's mother, 
          except as specified.  A man who receives a child into his home 
          and holds the child out as his own is also presumed a father of 
          the child.  A man who signs a voluntary declaration of paternity 
          is presumed to be the legal father of a child.  While the 
          statutory scheme uses the word "father," the presumptions must 
          be applied gender neutrally, so they apply to mothers as well.  








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          (See, e.g., Elisa B. V. Superior Court (2005) 37 Cal.4th 108.)

          Because of the presumptions of paternity available under law, it 
          is possible in limited situations for more than two people to 
          claim parentage of a child.  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.  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.) 


          This bill instead provides 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, but only if doing so is required to protect the 
          best interests of the child.  In support of this bill, the 
          author writes:

               SB 1476 protects children by recognizing 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 acknowledgment of 
               more than two of those parents may keep the child out of 
               foster care by giving the court more options for placement. 
                

               SB 1476 gives courts the flexibility they need to protect 
               the best interests of children who truly have more than two 
               parents.  It only applies if recognizing more than two 
               parents would be  required  to serve the best interests of 
               the child, and there are more than two people who have 
               claims to legal parentage under existing law.  It would not 
               apply to a boyfriend or girlfriend of a parent who has been 
               in the child's life for a short time, or to a relative 
               caregiver who provides periodic care.  Rather, it only 
               provides that where there are more than two people who have 
               an otherwise valid legal claim to parentage under existing 
               California parentage law, the court can, but is not 








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               required to, recognize more than two people as legal 
               parents of the child if it is necessary to protect the best 
               interests of the child.
              
           Establishing Parentage Under the Uniform Parentage Act  :  The UPA 
          was passed in 1975 to extend the parent and child relationship 
          equally to every child and to every parent, regardless of the 
          marital status of the parents.  The UPA defines "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 both mother and child, and 
          father and child relationships.  Insofar as practical, the UPA 
          is to be interpreted to apply to both father-child and 
          mother-child relationships.

          In 2005, the California Supreme Court found a parent-child 
          relationship in a trio of cases involving same-sex parents, one 
          with a genetic link to the child and two without.  In one case, 
          a woman provided the ova to the other woman who gave birth to 
          twins who were to be raised in the women's joint home.  (K.M. v. 
          E.G. (2005) 37 Cal.4th 130.)  In another case, the court 
          established parentage for a woman who had neither genetic link 
          nor given birth to the twins, but who received the children into 
          her home and held them out as her own.  (Elisa B. v. Superior 
          Court (2005) 37 Cal.4th 108.)  In the third case, a couple had 
          secured a judgment that they were the only legal parents of a 
          child who was born to and had a genetic link to one of the 
          women.  The court estopped that woman from disavowing the 
          validity of the judgment to which she had stipulated, thus 
          recognizing the parentage of the other woman who had neither 
          given birth to, nor had a genetic link to, the child.  (Kristine 
          H. v. Lisa R. (2005) 37 Cal.4th 156.)  None of these cases 
          involved the possibility of more than two parents.
          
          A Court of Appeals Refuses to Recognize More Than Two Parents, 
          but Invites the Legislature to Do So  .  The need for greater 
          flexibility in the number of legal parents was clarified in In 
          re M.C. (2011) 195 Cal.App.4th 197.  In that case, a juvenile 
          court found that three parents were a child's presumed parents - 
          the biological mother, the child's presumed mother, by virtue of 
          her marriage to the biological mother, and the biological 
          father, who conceived the child with the biological mother 
          during a premarital relationship.  The child was in foster care 
          as a result of the biological mother's involvement in the 








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          stabbing of the child's presumed mother.  The juvenile court 
          recognized all three parents, hoping to place the child with the 
          father, but the court of appeals reversed, potentially depriving 
          the child of a loving father, writing that such recognition 
          lies, more appropriately, with the Legislature:

               M.C. and the amicus curiae invite us to employ this case as 
               a vehicle to highlight the inadequacies of the antiquated 
               UPA to accommodate rapidly changing familial structures and 
               the need to recognize and accommodate novel parenting 
               relationships.  We agree these issues are critical, and 
               California's existing statutory framework is ill equipped 
               to resolve them.  But even if the extremely unusual factual 
               circumstances of this unfortunate case made it an 
               appropriate action in which to take on such complex 
               practical, political and social matters, we would not be 
               free to do so.  Such important policy determinations, which 
               will profoundly impact families, children and society, are 
               best left to the Legislature.  

          (Id. at 214.)
           
          Several Other States Have Recognized More Than Two Parents  :  
          Currently, several 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 partial 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).)  A Maine court found that a child 
          may have a non-biological, de facto parent with parental rights 
          and responsibilities in addition to two biological parents.  
          (C.E.W. v. D.E.W. (Me. 2004) 845 A.2d 1146, 1149-51.)  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 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, Sec. 8-201.)  








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           The opposition raises concern about the lack of an upper limit 
          on the number of parents permitted under the bill, but the 
          number of cases affected by this bill - and the number of 
          parents that may be recognized in any particular case - is 
          extremely limited by the provisions of the bill itself  .  The 
          Association of Family Conciliation Courts, one of the bill's 
          opponents, is concerned that there "is no limit on how many . . 
          . parents can be created by court order."  This bill, however, 
          does not change existing law as to who may be a presumed parent. 
           To be found a parent under the bill, a person must qualify as a 
          presumed parent under existing law.  Most stepparents and 
          boyfriends or girlfriends will not meet the requirement that 
          they not only take the child into their home, but also hold the 
          child out as their own.  That second part requires telling 
          friends, family and officials that the child is their own - not 
          their step-child, not their girlfriend's child, but their own 
          child.  

          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.  Courts therefore, under current law, 
          apply a critical analysis to situations where more than two 
          presumptions exist.  This bill does not limit that analysis.  It 
          simply allows courts the flexibility to find that more than one 
          presumed parent can be a parent.  
           
          The bill is even more limiting.  It is not enough to qualify as 
          a presumed parent.  The bill requires that when more than two 
          adults have a claim to parentage the court may only grant 
          parentage to more than two parents if such action is required to 
          serve the best interest of the child.  In determining the best 
          interest, the court is to consider the nature, duration and 
          quality of the presumed parents' relationships with the child 
          and the benefit or detriment to the child in continuing those 
          relationships.  No other parentage determination weighs the best 
          interest of the child.  The other determinations are all based 
          on the presumed parent's actions.  This bill puts the best 
          interest of the child above all else.  Adds the Children's 
          Advocacy Institute:

               By definition and practically, family relationships 
               involving more than two parents who want and warrant the 








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               status of parents are extremely rare.  This bill of course 
               will not change that.  And, an unusual family situation 
               should never be grounds to rupture a family in favor of 
               enforcing an arbitrary rule that will, based on evidence 
               before a judge, hurt a child.  Whether in foster care or 
               delinquency or in family court, ease for the lawyers and 
               the judge is never and should never trump striving to 
               achieve results that are "required" to serve the interest 
               of children.

           Bill Addresses Family Law Concerns  :  While more than two parents 
          may be highly desirable in a dependency case, where more loving 
          parents may help keep a child out of a group home or other 
          foster care placement, multiple parents in a family law 
          proceeding, where warring parents are fighting for custody, 
          could be more troublesome.  This bill recognizes that concern 
          and provides that the child's best interest, including the need 
          for stability for the child, must guide custody determinations.  
          Moreover, the bill specifically states that not all parents may 
          share legal or physical custody of the child.  While this is 
          true in all custody cases, this statement should provide 
          guidance to family courts to ensure that the child has stability 
          and that if legal or physical custody is shared with too many 
          parents, such stability may be lacking.

           Child Support Guideline Calculation Can Be Utilized to 
          Effectuate the Bill's Objectives  :  It is anticipated that cases 
          with more than two parents will be extremely rare and very fact 
          specific, and thus can be calculated outside of the statewide 
          guideline.  This bill allows for that possibility.  However, it 
          may also be possible to use the guideline for some of these 
          cases.  Specifically, it may be possible to run the guideline in 
          a multi-step process that involves first calculating all 
          parents' net income, then running the guideline program with the 
          high earner as one parent and the income and time share of 
          remaining parents combined as the other parent in the program.  
          The process is then repeated for the remaining parents (with the 
          highest earner excluded), with the highest earner of that 
          smaller group listed as the high earner and the parents 
          remaining as the other parent (with time shares adjusted 
          appropriately).  While this may be cumbersome, it should produce 
          a child support award using the guideline.  Alternatively, a 
          court may choose to depart from the guideline in these 
          undoubtedly very rare cases. 









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           Proposed Amendment  :  To ensure that a court may, but need not, 
                                                                  use the guideline, the author has rightly agreed to delete 
          language in the bill that prohibits a court from using the 
          guideline, and instead add language that permits, but does not 
          require, a court to deviate from the guideline in these cases.  
          This change is accomplished by make the following change to page 
          3, lines 25-26 of the bill:

            4052.5. (a) In any case in which a child has more than two 
            legal parents, the court  shall not apply   may deviate from the 
            statewide uniform guideline.  Instead,   the   The  court shall 
            divide child support obligations among the parents based on 
            income and amount of time spent with the child by each parent, 
            according to the principles set forth in Section 4053 and the 
            general formula set forth in Section 4055, adjusted to permit 
            recognition of more than two parents.

          This change does not in any way require the Department of Child 
          Support Services to change the guideline or the automation 
          system or to update forms and procedures.  Nor does it mandate 
          that courts and parties use the guideline.  It simply does not 
          prohibit courts from using the guideline in these cases should 
          they so choose.  Moreover, by not prohibiting use of the 
          guideline, California is likely to remain in compliance with 
          federal law, which requires the state to have a guideline and 
          use it in all cases, unless the court chooses to deviate from it 
          in undoubtedly very limited circumstances.

           ARGUMENTS IN SUPPORT  :  Supporters write:

               While most children have at most two parents in their 
               lives, some children have more than two people who act as 
               parents in every way.  Courts face a diversity of family 
               circumstances, but state law has not adapted to the reality 
               of those circumstances.  For example, state law has been 
               interpreted to prevent courts from ever recognizing more 
               than two people as a child's parents.  This inflexibility 
               can have disastrous emotional, psychological, and financial 
               consequences for a child who is separated from a loved one 
               he or she has always known as a parent.  Courts need more 
               tools to protect the best interests of children.

               AB 1476 protects children by recognizing the bonds they 
               share with their parents and the legal and emotional 
               security those bonds provide.  Recognizing legal parenthood 








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               gives a child the right to support from his or her parents, 
               reduces the state's financial responsibility for the child, 
               and keeps children out of foster care by giving courts more 
               options for placement.  Likewise, if a family is in 
               distress, otherwise legally valid parental relationships 
               should not be artificially severed and the already-at-risk 
               child should not be placed in foster care when there is a 
               legally satisfying alternative: another parent available to 
               care for the child.  SB 1476 does not change he definition 
               of parenthood, or allow temporary caretakers to be 
               considered parents.  It merely provides that when evidence 
               shows that more than two people meet the existing legal 
               definition of a child's parent, the court may recognize 
               those individuals and their legal obligations if doing so 
               would be required to protect the best interest of the 
               child.

          Adds the Children's Advocacy Institute:  "Children need parents, 
          period.  If what we as a society care about when adjudicating 
          parentage is honoring the bonds that bind children and their 
          parents, ensuring the child stays out of foster care, and - most 
          of all - conforming our laws and legal processes to what is 
          'required to serve the best interest of children,' then our laws 
          should not arbitrarily prevent judges from being able to use 
          their judgment."

           ARGUMENTS IN OPPOSITION  :  The opposition, consisting of mainly 
          family law practitioners, agrees that the bill is "well 
          intentioned and seeks to address real life situations in our 
          society.  The definition of 'family' is evolving and certainly 
          there are many different types of families, far different than 
          the stereotypical families of a few generations ago."  However, 
          they are concerned that the bill is extremely broad and vague 
          and could have negative results that put children in jeopardy.  
          The Association of Certified Family Law Specialists argues that:

               Because parentage law is so complicated, it is difficult to 
               attempt to change one aspect of it without upsetting the 
               entire framework.  In addition, 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 








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               other contexts.

          Courts already may have to recognize more than two legal parents 
          in at least two situations.  First, as discussed above, other 
          states have recognized that a child may have more than two legal 
          parents.  Under the Full Faith and Credit Clause, California 
          will be required to honor the acts and judicial proceedings of 
          the courts of these 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.  
          Accordingly, a Native American child may have up to four legal 
          parents - two natural parents and two adoptive.  While these 
          existing cases, and any new cases that arise as a result of this 
          bill, are indeed complicated and will require courts to balance 
          many competing interests, this bill makes clear that the guiding 
          principle throughout is the child's best interest.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support  

          Children's Advocacy Institute (co-sponsor)
          National Center for Lesbian Rights (co-sponsor)
          California Alliance of Child and Family Services
          Legal Services for Children
          National Association of Counsel for Children
          National Association of Social Workers
          Our Family Coalition
          Public Counsel
          Many individuals

           Opposition 

           Association of Certified Family Law Specialists
          Association of Family and Conciliation Courts
          California Right to Life Committee
          One individual  


          Analysis Prepared by  :  Leora Gershenzon / JUD. / (916) 319-2334










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