BILL NUMBER: SB 274 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 1, 2013
INTRODUCED BY Senator Leno
(Coauthor: Senator Beall)
FEBRUARY 14, 2013
An act to amend Section 4057 of Sections
3040, 4057, 7601, 7612, and 8617 of, and to add Section
4052.5 to, the Family Code, relating to child support.
family law.
LEGISLATIVE COUNSEL'S DIGEST
SB 274, as amended, Leno. Child support: statewide
uniform guideline. Family law: parentage: child custody
and support.
Under existing law, the parents of a minor child are responsible
for supporting the child. Existing law establishes the statewide
uniform guideline for calculating court-ordered child support, which
is rebuttably presumed to be the correct amount of child support.
Existing law provides that the presumption may be rebutted by
admissible evidence showing that application of the formula would be
unjust or inappropriate because of one or more factors found to be
applicable and the court provides certain information in writing, as
specified.
This bill would make a technical, nonsubstantive change to this
provision.
(1) Under existing law, a man is conclusively presumed to be the
father of a child if he was married to and cohabiting with the child'
s mother, except as specified. Existing law also provides that if a
man signs a voluntary declaration of paternity, it has the force and
effect of a judgment of paternity, subject to certain exceptions.
Existing law further provides that a man is rebuttably presumed to be
the father if he was married to, or attempted to marry, the mother
before or after the birth of the child, or he receives the child as
his own and openly holds the child out as his own. Under existing
law, the latter presumptions are rebutted by a judgment establishing
paternity by another man.
This bill would authorize a court to find that more than 2 persons
with a claim to parentage, as specified, are parents if the court
finds that recognizing only 2 parents would be detrimental to the
child. The bill would direct the court, in making this determination,
to consider all relevant factors, including, but not limited to, the
harm of removing the child from a stable placement with a parent who
has fulfilled the child's physical needs and the child's
psychological needs for care and affection, and who has assumed that
role for a substantial period of time.
(2) The Uniform Parentage Act defines the parent and child
relationship as the legal relationship existing between a child and
the child's parents, including the mother and child relationship and
the father and child relationship, and governs proceedings to
establish that relationship.
This bill would provide that a child may have a parent and child
relationship with more than 2 parents. The bill would require any
reference to 2 parents to be interpreted to apply to all of a child's
parents where a child is found to have more than 2 parents, as
specified.
(3) Existing law requires a family court to determine the best
interest of the child for purposes of deciding child custody in
proceedings for dissolution of marriage, nullity of marriage, legal
separation of the parties, petitions for exclusive custody of a
child, and proceedings under the Domestic Violence Prevention Act. In
making that determination, existing law requires the court to
consider specified factors, including the health, safety, and welfare
of the child. Existing law establishes an order of preference for
allocating child custody and directs the court to choose a parenting
plan that is in the child's best interest.
This bill would, in the case of a child with more than 2 parents,
require the court to allocate custody and visitation among the
parents based on the best interest of the child, as specified.
(4) Under existing law, the parents of a minor child are
responsible for supporting the child. Existing law establishes the
statewide uniform guideline for calculating court-ordered child
support, which is rebuttably presumed to be the correct amount of
child support. Existing law provides that the presumption may be
rebutted by admissible evidence showing that application of the
uniform guideline would be unjust or inappropriate because of one or
more factors found to be applicable and the court provides certain
information in writing, as specified.
This bill would direct the court to apply the statewide uniform
guideline in a case where a child has more than 2 parents by dividing
the child support obligations among the parents based on the income
of each of the parents and the amount of time spent with the child by
each parent. The bill would require the court to divide child
support obligations among the parents in a just and appropriate
manner, as specified, if the court finds that applying the statewide
uniform guideline to a child with more than 2 parents would be unjust
and inappropriate, as specified.
(5) Under existing law, the birth parents of an adopted child are,
from the time of the adoption, relieved of all parental duties
towards, and all responsibility for, the adopted child, and have no
right over the child.
This bill would provide that the termination of the parental
duties and responsibility of the parent or parents may be waived by
agreement of the parent or parents and the prospective adoptive
parent.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all
of the following:
(a) Most children have two parents, but in rare cases, children
have more than two people who are that child's parent in every way.
Separating a child from a parent has a devastating psychological and
emotional impact on the child, and courts must have the power to
protect children from this harm.
(b) The purpose of this bill is to abrogate In re M.C. (2011) 195
Cal.App.4th 197 insofar as it held that where there are more than two
people who have a claim to parentage under the Uniform Parentage
Act, courts are prohibited from recognizing more than two of these
people as the parents of a child, regardless of the circumstances.
(c) This bill does not change any of the requirements for
establishing a claim to parentage under the Uniform Parentage Act. It
only clarifies that where more than two people have claims to
parentage, the court may, if it would otherwise be detrimental to the
child, recognize that the child has more than two parents.
(d) It is the intent of the Legislature that this bill will only
apply in the rare case where a child truly has more than two parents,
and a finding that a child has more than two parents is necessary to
protect the child from the detriment of being separated from one of
his or her parents.
SEC. 2. Section 3040 of the Family Code
is amended to read:
3040. (a) Custody should be granted in the following order of
preference according to the best interest of the child as provided in
Sections 3011 and 3020:
(1) To both parents jointly pursuant to Chapter 4 (commencing with
Section 3080) or to either parent. In making an order granting
custody to either parent, the court shall consider, among other
factors, which parent is more likely to allow the child frequent and
continuing contact with the noncustodial parent, consistent with
Sections 3011 and 3020, and shall not prefer a parent as custodian
because of the gender of that parent's sex
parent . The court, in its discretion, may
require the parents to submit to the court a plan for the
implementation of the custody order.
(2) If to neither parent, to the person or persons in whose home
the child has been living in a wholesome and stable environment.
(3) To any other person or persons deemed by the court to be
suitable and able to provide adequate and proper care and guidance
for the child.
(b) The immigration status of a parent, legal guardian, or
relative shall not disqualify the parent, legal guardian, or relative
from receiving custody under subdivision (a).
(c) This section establishes neither a preference nor a
presumption for or against joint legal custody, joint physical
custody, or sole custody, but allows the court and the family the
widest discretion to choose a parenting plan that is in the best
interest of the child.
(d) In cases where a child has more than two parents, the court
shall allocate custody and visitation among the parents based on the
best interest of the child, including, but not limited to, addressing
the child's need for continuity and stability by preserving
established patterns of care and emotional bonds. The court may order
that not all parents share legal or physical custody of the child if
the court finds that it would not be in the best interest of the
child as provided in Sections 3011 and 3020.
SEC. 3. Section 4052.5 is added to the
Family Code , to read:
4052.5. (a) The statewide uniform guideline, as required by
federal regulations, shall apply in any case in which a child has
more than two parents. The court shall apply the guideline by
dividing child support obligations among the parents based on income
and amount of time spent with the child by each parent, pursuant to
Section 4053.
(b) Consistent with federal regulations, after calculating the
amount of support owed by each parent under the guideline, the
presumption that the guideline amount of support is correct may be
rebutted if the court finds that the application of the guideline in
that case would be unjust or inappropriate due to special
circumstances, pursuant to Section 4057. If the court makes that
finding, the court shall divide child support obligations among the
parents in a manner that is just and appropriate based on income and
amount of time spent with the child by each parent, applying the
principles set forth in Section 4053 and this article.
SECTION 1. SEC. 4. Section 4057 of
the Family Code is amended to read:
4057. (a) The amount of child support established by the formula
provided in subdivision (a) of Section 4055 is presumed to be the
correct amount of child support to be ordered.
(b) The presumption of subdivision (a) is a rebuttable presumption
affecting the burden of proof and may be rebutted by admissible
evidence showing that application of the formula would be unjust or
inappropriate in the particular case, consistent with the principles
set forth in Section 4053, because one or more of the following
factors is found to be applicable by a preponderance of the evidence,
and the court states in writing or on the record the information
required in subdivision (a) of Section 4056:
(1) The parties have stipulated to a different amount of child
support under subdivision (a) of Section 4065.
(2) The sale of the family residence is deferred pursuant to
Chapter 8 (commencing with Section 3800) of Part 1 and the rental
value of the family residence where the children reside exceeds the
mortgage payments, homeowner's insurance, and property taxes. The
amount of any adjustment pursuant to this paragraph shall not be
greater than the excess amount.
(3) The parent being ordered to pay child support has an
extraordinarily high income and the amount determined under the
formula would exceed the needs of the children.
(4) A party is not contributing to the needs of the children at a
level commensurate with that party's custodial time.
(5) Application of the formula would be unjust or inappropriate
due to special circumstances in the particular case. These special
circumstances include, but are not limited to, the following:
(A) Cases in which the parents have different time-sharing
arrangements for different children.
(B) Cases in which both parents have substantially equal
time-sharing of the children and one parent has a much lower or
higher percentage of income used for housing than the other parent.
(C) Cases in which the children have special medical or other
needs that could require child support that would be greater than the
formula amount.
(D) Cases in which a child is found to have more than two parents.
SEC. 5. Section 7601 of the Family Code
is amended to read:
7601. (a) "Parent and child relationship"
as used in this part means 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.
(b) This part does not preclude a finding that a child has a
parent and child relationship with more than two parents.
(c) For purposes of state law, administrative regulations, court
rules, government policies, common law, and any other provision or
source of law governing the rights, protections, benefits,
responsibilities, obligations, and duties of parents, any reference
to two parents shall be interpreted to apply to every parent of a
child where that child has been found to have more than two parents
under this part.
SEC. 6. Section 7612 of the Family Code
is amended to read:
7612. (a) Except as provided in Chapter 1 (commencing with
Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2
or in Section 20102, a presumption under Section 7611 is a rebuttable
presumption affecting the burden of proof and may be rebutted in an
appropriate action only by clear and convincing evidence.
(b) If two or more presumptions arise under Section 7610 or 7611
that conflict with each other, or if a presumption under Section 7611
conflicts with a claim pursuant to Section 7610, the presumption
which on the facts is founded on the weightier considerations of
policy and logic controls.
(c) In an appropriate action, a court may find that more than two
persons with a claim to parentage under this division are parents if
the court finds that recognizing only two parents would be
detrimental to the child. In determining detriment to the child, the
court shall consider all relevant factors, including, but not limited
to, the harm of removing the child from a stable placement with a
parent who has fulfilled the child's physical needs and the child's
psychological needs for care and affection, and who has assumed that
role for a substantial period of time. A finding of detriment to the
child does not require a finding of unfitness of any of the parents
or persons with a claim to parentage.
(c) The
(d) Unless a court orders otherwise
after making the determination specified in subdivision (c), a
presumption under Section 7611 is rebutted by a judgment establishing
paternity of the child by another man.
(d)
(e) Within two years of the execution of a voluntary
declaration of paternity, a person who is presumed to be a parent
under Section 7611 may file a petition pursuant to Section 7630 to
set aside a voluntary declaration of paternity. The court's ruling on
the petition to set aside the voluntary declaration of paternity
shall be made taking into account the validity of the voluntary
declaration of paternity, and the best interests of the child based
upon the court's consideration of the factors set forth in
subdivision (b) of Section 7575, as well as the best interests of the
child based upon the nature, duration, and quality of the
petitioning party's relationship with the child and the benefit or
detriment to the child of continuing that relationship. In the event
of any conflict between the presumption under Section 7611 and the
voluntary declaration of paternity, the weightier considerations of
policy and logic shall control.
(e)
(f) A voluntary declaration of paternity is invalid if,
at the time the declaration was signed, any of the following
conditions exist:
(1) The child already had a presumed parent under Section 7540.
(2) The child already had a presumed parent under subdivision (a),
(b), or (c) of Section 7611.
(3) The man signing the declaration is a sperm donor, consistent
with subdivision (b) of Section 7613.
SEC. 7. Section 8617 of the Family Code
is amended to read :
8617. The birth (a)
Except as provided in subdivision (b), the existing parent or
parents of an adopted child are, from the time of the adoption,
relieved of all parental duties towards, and all responsibility for,
the adopted child, and have no right over the child.
(b) The termination of the parental duties and responsibilities of
the existing parent or parents under subdivision (a) may be waived
by agreement of the existing parent or parents and the prospective
adoptive parents.