BILL ANALYSIS Ó
SB 1476
Page 1
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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