BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 1403 (Committee on Judiciary)
As Amended June 13, 2013
Hearing Date: June 25, 2013
Fiscal: Yes
Urgency: No
NR
SUBJECT
Family law
DESCRIPTION
This bill would make technical and clarifying changes to the
Uniform Parentage Act (UPA) to codify case law, and make the
Act's provisions gender neutral where appropriate. This bill
would also authorize the Judicial Council to convert 10
subordinate judicial officer positions to judgeships in the
2013-14 year, if the conversion would result in a judge being
assigned to a family law or juvenile law assignment, as
specified.
BACKGROUND
The Uniform Parentage Act (UPA) was part of a package of
legislation introduced in 1975 (SB 347, Beilenson, Ch. 1244,
Stats. 1975) to eliminate the legal distinction between
legitimate and illegitimate children. The UPA instead focuses on
the "parent and child relationship," defined as "the legal
relationship existing between a child and his natural or
adoptive parents incident to which the law confers or imposes
rights, privileges, duties, and obligations. It includes the
mother and child relationship and the father and child
relationship." (Fam. Code Sec. 7601.) The law further provides
that "the parent and child relationship extends equally to every
child and to every parent, regardless of the marital status of
the parents." (Fam. Code Sec. 7602.) This bill would codify
changes to the UPA that have been established by case law since
its enactment.
(more)
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Additionally, in a 2010 report the Judicial Council analyzed the
need for more judges in California's courts. The Council
compared the amount of judges necessary for court operation with
the amount of judicial positions authorized and funded, and
determined that there was a shortfall of 14 percent. Existing
law permits litigants to stipulate to the use of an attorney,
appointed by the trial court, to serve as a temporary judge to
preside over their matter. These temporary judges are known as
subordinate judicial officers (SJOs). According to the Judicial
Council, the current shortfall in available judges has led to
SJOs spending an average of 55 percent of their time working as
temporary judges, and in large courts, that number approaches 75
to 80 percent. This bill, which, in part, is nearly identical
to last year's SB 405 (Corbett, Ch. 705, Stats. 2011) seeks to
ensure that a greater number of family and juvenile law cases
are presided over by judges, rather than SJOs. Accordingly,
this bill would also ratify the Judicial Council's authority to
convert 10 subordinate judicial officers (SJO) to judgeships in
the next year, provided those judges replace SJOs in family or
juvenile law cases.
CHANGES TO EXISTING LAW
1.Existing law , 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 law
provides that a parent and child relationship includes the
mother and child relationship and the father and child
relationship. (Fam. Code Sec. 7600 et seq.)
Existing law provides that a man is a presumed father if,
among other things: (1) he was married to the child's mother
and the child was born within 300 days of the marriage; (2) he
attempted to marry the child's mother; or (3) he holds the
child out as his own. (Fam. Code Sec. 7611.)
Existing law requires that the paternity presumptions be
applied gender neutrally. (Elisa B. v. Superior Court (2005)
37 Cal.4th 108.)
Existing law provides that, if two or more paternity
presumptions conflict with one another, the presumption that
is founded on the weightier considerations of policy and logic
controls, and further provides that a presumption of parentage
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is rebutted by a judgment establishing paternity of the child
by another man. (Fam. Code Sec. 7612.)
Existing law provides that paternity may be established by
voluntary declaration for unmarried parents, or through a
civil action brought by any interested party, as specified.
(Fam. Code Secs. 7630, 7570 et seq.)
This bill would codify case law with regards to the Uniform
Parentage Act (UPA), and would make the Act's provisions
gender neutral where appropriate.
2.Existing law provides that the Legislature shall prescribe the
number of judges and provide for the officers and employees of
each superior court. Provides that the Legislature may
provide for the trial courts to appoint officers such as
commissioners to perform subordinate judicial duties. (Cal.
Const. art. VI, Secs. 4, 22.)
Existing law authorizes the courts to appoint subordinate
judicial officers, and sets forth their duties and titles.
(Gov. Code Sec. 71622.)
Existing law authorizes the conversion of 16 subordinate
judicial officer positions in eligible superior courts to
judgeships each fiscal year as specified. Existing law
further authorizes the Judicial Council to convert up to an
additional 10 SJOs to judgeships each year, upon vacancy and
subsequent legislative authorization, if the conversion of
these additional positions will result in a judge being
assigned to a family or juvenile law assignment previously
presided over by a SJO, but requires that such authority be
ratified by the Legislature by statutory enactment. (Gov.
Code Secs. 69615-16.)
This bill would ratify the authority of the Judicial Council
to convert 10 subordinate judicial officer positions (SJOs) to
judgeships in 2013-14, provided the conversion of these
positions will result in judges being assigned to family or
juvenile law assignments previously presided over by a
subordinate judicial officer, and would provide that this
authority is in addition to the existing authority provided to
convert 16 SJOs to judges.
COMMENT
1.Stated need for the bill
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According to the author:
The Uniform Parentage Act (UPA) sets forth how the
relationships between parents and their children are legally
established. Unfortunately, while the California Supreme
Court has determined that our parentage laws can recognize
parents of the same gender, our statutes have not been
updated, so anyone reading just the statutes would not
understand the law. Unrepresented family law litigants have
an especially hard time understanding these laws when our code
provisions don't reflect our laws.
Consistent with the law as established by the California
Supreme Court and the Courts of Appeal, this bill clarifies
and updates the UPA to reflect the actual law that applies.
In particular, this bill makes the UPA, consistent with
well-established case law, gender neutral, recognizing that a
woman can be a presumed parent and that a child may have more
than one parent of the same sex.
Additionally, the Judicial Council has identified family and
juvenile law cases as among those most important for judges,
rather than SJOs, to preside over. Unlike judges, SJOs are
not directly accountable to the public. Unfortunately, due to
the shortages of judges, SJOs today are performing some of the
most complex and sensitive judicial duties, including
presiding over family and juvenile law matters. Conversion of
these positions to judgeships when they become vacant makes
them both more accountable to the public and helps provide
better trust and confidence in the courts.
2.Uniform Parentage Act
Existing law, the Uniform Parentage Act (UPA), provides a number
of ways a person may be legally considered a parent of a child,
or establish a parent and child relationship. These
presumptions of parentage can arise by nature of giving birth, a
biological connection to the child, because of one's marital
status, or a person's status as a domestic partner. California
law also presumes that a person is a parent if he or she has
received a child into his or her home and has openly held that
child out as his or her own, and allows a man who signs a
voluntary declaration of paternity to be presumed a legal
father. (Fam. Code. Secs. 7573, 7574, 7611.)
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Subsequent to its enactment, the UPA has been interpreted by the
courts to apply neutrally regarding gender, and has been used to
determine parentage in cases with surrogates and donors of
genetic material. (See e.g., Elisa B. v. Superior Court (2005)
37 Cal.4th 108; Johnson v. Calvert (1993) 5 Cal.4th 84; K.M. v.
E.G. (2005) 37 Cal.4th 130.) This bill would update statutory
terms within the UPA to conform with case law and other
statutory provisions. Specifically, this bill would update the
following terms:
"presumed father" would be changed to "presumed parent," since
that term is gender neutral and both a mother and a father can
be a presumed parent;
"father" and "mother" would be replaced, when appropriate,
with "parent;"
"insemination" would be replaced with "assisted reproduction,"
as defined in Family Code Section 7606; and
"paternity" would be replaced, when appropriate, with the term
"parentage."
The author writes in support of this bill that "the vast
majority of litigants in family law cases are unrepresented by
counsel. Understanding the law and complex legal processes are
hard enough for these parties, but when statutes do not reflect
our actual laws, it is nearly impossible for them to adequately
represent themselves?This bill does not change the
well-established law of parentage. Rather it updates the Family
Code and makes it consistent with case law. These changes will
ensure that someone reading the Family Code will have an
accurate understanding of the law."
1.Conversions of available subordinate judicial officer
positions to judgeships in family and juvenile court
Under current law, the Legislature is responsible for
prescribing the number of judges and providing for the officers
and employees of each superior court. (Cal. Const., art. VI,
Sec. 4.) Existing law further permits the Legislature to
provide for, and the courts to appoint, subordinate judicial
officers (SJOs) to assist the courts in carrying out their
duties. (Id. at Sec. 22; Gov. Code Sec. 71622.)
Historically, SJO positions were created and funded at the
county level to address courts' needs for judicial-like
resources when new judgeships were pending or not yet authorized
by the Legislature. However, responding to the shortage of
judges available to handle the trial courts' workload, the
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Legislature has considered numerous bills over the last several
years that established new judgeships and authorized the
conversion of up to 162 existing SJOs, limited to 16 per fiscal
year, to judgeships upon vacancy. Unlike judges, SJOs are not
directly accountable to the public, but due to the shortages of
judges, they are performing some of the most complex and
sensitive judicial duties.
Recognizing the particular need for judges in family and
juvenile law cases, AB 2763 (Judiciary, Ch. 690, Stats. 2010),
authorized the Judicial Council to convert up to an additional
10 SJOs to judgeships each year, if the conversion of these
additional positions will result in a judge being assigned to a
family or juvenile law assignment previously presided over by an
SJO. However, such authorization must be ratified by the
Legislature. This was done by the Legislature in 2011-12
through SB 405 (Corbett, Ch. 705, Stats. 2011). This bill seeks
to provide the Judicial Council with that same ratification for
2013-14.
Support : Association of Certified Family Law Specialists;
Children's Advocacy Institute; Executive Committee of the Family
Law Section of the State Bar (FLEXCOM); National Center for
Lesbian Rights; Judicial Council of California
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : SB 115 (Hill) would clarify that
any interested party may bring an action for the purpose of
determining a parent and child relationship at any time. This
bill is in the Assembly Judiciary Committee.
Prior Legislation :
SB 405 (Corbett, Chapter 705, Statutes of 2011) See Comment 3.
AB 2763 (Judiciary, Chapter 690, Statutes of 2010) See Comment
3.
AB 159 (Jones, Chapter 722, Statutes of 2007) See Comment 3.
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Prior Vote :
Assembly Floor (Ayes 65, Noes 11)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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