Amended in Assembly August 22, 2013

Amended in Senate May 14, 2013

Amended in Senate April 1, 2013

Senate BillNo. 274


Introduced by Senator Leno

(Coauthor: Senator Beall)

February 14, 2013


An act to amend Sections 3040, 4057, 7601, 7612, and 8617 of, and to add Section 4052.5 to, the Family Code, relating to family law.

LEGISLATIVE COUNSEL’S DIGEST

SB 274, as amended, Leno. Family law: parentage: child custody and support.

(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 waivedbegin delete by agreement ofend deletebegin insert if bothend insert the parent or parents and the prospective adoptive parentbegin insert or parents sign a waiver at any time prior to the finalization of the adoptionend insert.

begin insert

(6) This bill would incorporate additional changes in Sections 7601 and 7612 of the Family Code, proposed by AB 1403, to be operative only if AB 1403 and this bill are both chaptered and become effective January 1, 2014, and this bill is chaptered last.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

The Legislature finds and declares all of the
2following:

3(a) Most children have two parents, but in rare cases, children
4have more than two people who are that child’s parent in every
5way. Separating a child from a parent has a devastating
6psychological and emotional impact on the child, and courts must
7have the power to protect children from this harm.

8(b) The purpose of this bill is to abrogate In re M.C. (2011) 195
9Cal.App.4th 197 insofar as it held that where there are more than
10two people who have a claim to parentage under the Uniform
11Parentage Act, courts are prohibited from recognizing more than
12two of these people as the parents of a child, regardless of the
13circumstances.

14(c) This bill does not change any of the requirements for
15establishing a claim to parentage under the Uniform Parentage
16Act. It only clarifies that where more than two people have claims
17to parentage, the court may, if it would otherwise be detrimental
18to the child, recognize that the child has more than two parents.

19(d) It is the intent of the Legislature that this bill will only apply
20in the rare case where a child truly has more than two parents, and
21a finding that a child has more than two parents is necessary to
P4    1protect the child from the detriment of being separated from one
2of his or her parents.

3

SEC. 2.  

Section 3040 of the Family Code is amended to read:

4

3040.  

(a) Custody should be granted in the following order of
5preference according to the best interest of the child as provided
6in Sections 3011 and 3020:

7(1) To both parents jointly pursuant to Chapter 4 (commencing
8with Section 3080) or to either parent. In making an order granting
9custody to either parent, the court shall consider, among other
10factors, which parent is more likely to allow the child frequent and
11continuing contact with the noncustodial parent, consistent with
12Sections 3011 and 3020, and shall not prefer a parent as custodian
13because ofbegin delete the gender of that parentend deletebegin insert that parent’s sexend insert. The court,
14in its discretion, may require the parents to submit to the court a
15plan for the implementation of the custody order.

16(2) If to neither parent, to the person or persons in whose home
17the child has been living in a wholesome and stable environment.

18(3) To any other person or persons deemed by the court to be
19suitable and able to provide adequate and proper care and guidance
20for the child.

21(b) The immigration status of a parent, legal guardian, or relative
22shall not disqualify the parent, legal guardian, or relative from
23receiving custody under subdivision (a).

24(c) This section establishes neither a preference nor a
25presumption for or against joint legal custody, joint physical
26custody, or sole custody, but allows the court and the family the
27widest discretion to choose a parenting plan that is in the best
28interest of the child.

29(d) In cases where a child has more than two parents, the court
30shall allocate custody and visitation among the parents based on
31the best interest of the child, including, but not limited to,
32addressing the child’s need for continuity and stability by
33preserving established patterns of care and emotional bonds. The
34court may order that not all parents share legal or physical custody
35of the child if the court finds that it would not be in the best interest
36of the child as provided in Sections 3011 and 3020.

37

SEC. 3.  

Section 4052.5 is added to the Family Code, to read:

38

4052.5.  

(a) The statewide uniform guideline, as required by
39federal regulations, shall apply in any case in which a child has
40more than two parents. The court shall apply the guideline by
P5    1dividing child support obligations among the parents based on
2income and amount of time spent with the child by each parent,
3pursuant to Section 4053.

4(b) Consistent with federal regulations, after calculating the
5amount of support owed by each parent under the guideline, the
6presumption that the guideline amount of support is correct may
7be rebutted if the court finds that the application of the guideline
8in that case would be unjust or inappropriate due to special
9circumstances, pursuant to Section 4057. If the court makes that
10finding, the court shall divide child support obligations among the
11parents in a manner that is just and appropriate based on income
12and amount of time spent with the child by each parent, applying
13the principles set forth in Section 4053 and this article.

14(c) Nothing in this section shall be construed to require
15reprogramming of the California Child Support Automation
16System, established pursuant to Chapter 4 (commencing with
17Section 10080) of Part 1 of Division 9 of the Welfare and
18Institutions Code, a change to the statewide uniform guideline for
19determining child support set forth in Section 4055, or a revision
20by the Department of Child Support Services of its regulations,
21policies, procedures, forms, or training materials.

22

SEC. 4.  

Section 4057 of the Family Code is amended to read:

23

4057.  

(a) The amount of child support established by the
24formula provided in subdivision (a) of Section 4055 is presumed
25to be the correct amount of child support to be ordered.

26(b) The presumption of subdivision (a) is a rebuttable
27presumption affecting the burden of proof and may be rebutted by
28admissible evidence showing that application of the formula would
29be unjust or inappropriate in the particular case, consistent with
30the principles set forth in Section 4053, because one or more of
31the following factors is found to be applicable by a preponderance
32of the evidence, and the court states in writing or on the record the
33information required in subdivision (a) of Section 4056:

34(1) The parties have stipulated to a different amount of child
35support under subdivision (a) of Section 4065.

36(2) The sale of the family residence is deferred pursuant to
37Chapter 8 (commencing with Section 3800) of Part 1 and the rental
38value of the family residence where the children reside exceeds
39the mortgage payments, homeowner’s insurance, and property
P6    1taxes. The amount of any adjustment pursuant to this paragraph
2shall not be greater than the excess amount.

3(3) The parent being ordered to pay child support has an
4extraordinarily high income and the amount determined under the
5formula would exceed the needs of the children.

6(4) A party is not contributing to the needs of the children at a
7level commensurate with that party’s custodial time.

8(5) Application of the formula would be unjust or inappropriate
9due to special circumstances in the particular case. These special
10circumstances include, but are not limited to, the following:

11(A) Cases in which the parents have different time-sharing
12arrangements for different children.

13(B) Cases in which both parents have substantially equal
14time-sharing of the children and one parent has a much lower or
15higher percentage of income used for housing than the other parent.

16(C) Cases in which the children have special medical or other
17needs that could require child support that would be greater than
18the formula amount.

19(D) Cases in which a child is found to have more than two
20parents.

21

SEC. 5.  

Section 7601 of the Family Code is amended to read:

22

7601.  

(a) “Parent and child relationship” as used in this part
23means the legal relationship existing between a child and the child’s
24natural or adoptive parents incident to which the law confers or
25imposes rights, privileges, duties, and obligations. The term
26includes the mother and child relationship and the father and child
27relationship.

28(b) This part does not preclude a finding that a child has a parent
29and child relationship with more than two parents.

30(c) For purposes of state law, administrative regulations, court
31rules, government policies, common law, and any other provision
32or source of law governing the rights, protections, benefits,
33responsibilities, obligations, and duties of parents, any reference
34to two parents shall be interpreted to apply to every parent of a
35child where that child has been found to have more than two
36parents under this part.

37begin insert

begin insertSEC. 5.5.end insert  

end insert

begin insertSection 7601 of the end insertbegin insertFamily Codeend insertbegin insert is amended to read:end insert

38

7601.  

begin insert

(a) “Natural parent” as used in this code means a
39nonadoptive parent established under this part, whether
40biologically related to the child or not.

end insert

P7    1begin insert(b)end insertbegin insertend insert“Parent and child relationship” as used in this part means
2the legal relationship existing between a child and the child’s
3natural or adoptive parents incident to which the law confers or
4imposes rights, privileges, duties, and obligations. The term
5includes the mother and child relationship and the father and child
6relationship.

begin insert

7(c) This part does not preclude a finding that a child has a
8parent and child relationship with more than two parents.

end insert
begin insert

9(d) For purposes of state law, administrative regulations, court
10rules, government policies, common law, and any other provision
11or source of law governing the rights, protections, benefits,
12responsibilities, obligations, and duties of parents, any reference
13to two parents shall be interpreted to apply to every parent of a
14child where that child has been found to have more than two
15parents under this part.

end insert
16

SEC. 6.  

Section 7612 of the Family Code is amended to read:

17

7612.  

(a) Except as provided in Chapter 1 (commencing with
18Section 7540) and Chapter 3 (commencing with Section 7570) of
19Part 2 or in Section 20102, a presumption under Section 7611 is
20a rebuttable presumption affecting the burden of proof and may
21be rebutted in an appropriate action only by clear and convincing
22evidence.

23(b) If two or more presumptions arise under Section 7610 or
247611 that conflict with each other, or if a presumption under
25Section 7611 conflicts with a claim pursuant to Section 7610, the
26presumption which on the facts is founded on the weightier
27considerations of policy and logic controls.

28(c) In an appropriate action, a court may find that more than
29two persons with a claim to parentage under this division are
30parents if the court finds that recognizing only two parents would
31be detrimental to the child. In determining detriment to the child,
32the court shall consider all relevant factors, including, but not
33limited to, the harm of removing the child from a stable placement
34with a parent who has fulfilled the child’s physical needs and the
35child’s psychological needs for care and affection, and who has
36assumed that role for a substantial period of time. A finding of
37detriment to the child does not require a finding of unfitness of
38any of the parents or persons with a claim to parentage.

39(d) Unless a court orders otherwise after making the
40determination specified in subdivision (c), a presumption under
P8    1Section 7611 is rebutted by a judgment establishing paternity of
2the child by another man.

3(e) Within two years of the execution of a voluntary declaration
4of paternity, a person who is presumed to be a parent under Section
57611 may file a petition pursuant to Section 7630 to set aside a
6voluntary declaration of paternity. The court’s ruling on the petition
7to set aside the voluntary declaration of paternity shall be made
8taking into account the validity of the voluntary declaration of
9paternity, and the best interests of the child based upon the court’s
10consideration of the factors set forth in subdivision (b) of Section
117575, as well as the best interests of the child based upon the
12nature, duration, and quality of the petitioning party’s relationship
13with the child and the benefit or detriment to the child of continuing
14that relationship. In the event of any conflict between the
15presumption under Section 7611 and the voluntary declaration of
16paternity, the weightier considerations of policy and logic shall
17control.

18(f) A voluntary declaration of paternity is invalid if, at the time
19the declaration was signed, any of the following conditions exist:

20(1) The child already had a presumed parent under Section 7540.

21(2) The child already had a presumed parent under subdivision
22(a), (b), or (c) of Section 7611.

23(3) The man signing the declaration is a sperm donor, consistent
24with subdivision (b) of Section 7613.

25begin insert

begin insertSEC. 6.5.end insert  

end insert

begin insertSection 7612 of the end insertbegin insertFamily Codeend insertbegin insert is amended to read:end insert

26

7612.  

(a) Except as provided in Chapter 1 (commencing with
27Section 7540) and Chapter 3 (commencing with Section 7570) of
28Part 2 or in Section 20102, a presumption under Section 7611 is
29a rebuttable presumption affecting the burden of proof and may
30be rebutted in an appropriate action only by clear and convincing
31evidence.

32(b) If two or more presumptions arise under Section 7610 or
337611 that conflict with each other, or if a presumption under
34Section 7611 conflicts with a claim pursuant to Section 7610, the
35presumption which on the facts is founded on the weightier
36considerations of policy and logic controls.

begin insert

37(c) In an appropriate action, a court may find that more than
38two persons with a claim to parentage under this division are
39parents if the court finds that recognizing only two parents would
40be detrimental to the child. In determining detriment to the child,
P9    1the court shall consider all relevant factors, including, but not
2limited to, the harm of removing the child from a stable placement
3with a parent who has fulfilled the child’s physical needs and the
4child’s psychological needs for care and affection, and who has
5assumed that role for a substantial period of time. A finding of
6detriment to the child does not require a finding of unfitness of
7any of the parents or persons with a claim to parentage.

end insert
begin delete

8(c) The

end delete

9begin insert(d)end insertbegin insertend insertbegin insertUnless a court orders otherwise after making the
10determination specified in subdivision (c), aend insert
presumption under
11Section 7611 is rebutted by a judgment establishingbegin delete paternityend delete
12begin insert parentageend insert of the child by anotherbegin delete manend deletebegin insert personend insert.

begin delete

13(d)

end delete

14begin insert(e)end insert Within two years of the execution of a voluntary declaration
15of paternity, a person who is presumed to be a parent under Section
167611 may file a petition pursuant to Section 7630 to set aside a
17voluntary declaration of paternity. The court’s ruling on the petition
18to set aside the voluntary declaration of paternity shall be made
19taking into account the validity of the voluntary declaration of
20paternity, and the best interests of the child based upon the court’s
21consideration of the factors set forth in subdivision (b) of Section
227575, as well as the best interests of the child based upon the
23nature, duration, and quality of the petitioning party’s relationship
24with the child and the benefit or detriment to the child of continuing
25that relationship. In the event of any conflict between the
26presumption under Section 7611 and the voluntary declaration of
27paternity, the weightier considerations of policy and logic shall
28control.

begin delete

29(e)

end delete

30begin insert(f)end insert A voluntary declaration of paternity is invalid if, at the time
31the declaration was signed, any of the following conditions exist:

32(1) The child already had a presumed parent under Section 7540.

33(2) The child already had a presumed parent under subdivision
34(a), (b), or (c) of Section 7611.

35(3) The man signing the declaration is a sperm donor, consistent
36with subdivision (b) of Section 7613.

37

SEC. 7.  

Section 8617 of the Family Code is amended to read:

38

8617.  

(a) Except as provided in subdivision (b), the existing
39parent or parents of an adopted child are, from the time of the
40adoption, relieved of all parental duties towards, and all
P10   1responsibility for, the adopted child, and have no right over the
2child.

3(b) The termination of the parental duties and responsibilities
4of the existing parent or parents under subdivision (a) may be
5waivedbegin delete by agreement ofend deletebegin insert if bothend insert the existing parent or parents and
6the prospective adoptivebegin delete parentsend deletebegin insert parent or parents sign a waiver
7at any time prior to the finalization of the adoption. The waiver
8shall be filed with the courtend insert
.

9begin insert

begin insertSEC. 8.end insert  

end insert
begin insert

(a)  Section 5.5 of this bill incorporates amendments
10to Section 7601 of the Family Code proposed by both this bill and
11Assembly Bill 1403. It shall only become operative if (1) both bills
12are enacted and become effective on or before January 1, 2014,
13(2) each bill amends Section 7601 of the Family Code, and (3) this
14bill is enacted after Assembly Bill 1403, in which case Section 5
15of this bill shall not become operative.

end insert
begin insert

16(b) Section 6.5 of this bill incorporates amendments to Section
177612 of the Family Code proposed by both this bill and Assembly
18Bill 1403. It shall only become operative if (1) both bills are
19enacted and become effective on or before January 1, 2014, (2)
20each bill amends Section 7612 of the Family Code, and (3) this
21bill is enacted after Assembly Bill 1403, in which case Section 6
22of this bill shall not become operative.

end insert


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