BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 274 (Leno)
As Amended April 1, 2013
Hearing Date: April 30, 2013
Fiscal: Yes
Urgency: No
NR
SUBJECT
Family Law: Parentage: Child Custody and Support
DESCRIPTION
This bill would provide that a child may have a parent and child
relationship, as defined by the Uniform Parentage Act, with more
than two parents. This bill would permit a court to find that
more than two persons with a legal claim to parentage are
parents if the court finds that recognizing only two parents
would be detrimental to the child, as specified. This bill would
require, in the case where a child has been found to have more
than two parents, that any reference in existing law, as
specified, to two parents be interpreted to apply to all of a
child's parents.
This bill would also:
require, in a case of a child with more than two parents, the
court to allocate custody and visitation among the parents
based on the best interest of the child.
provide that the statewide uniform child support guideline
shall also apply in any case in which a child has more than
two parents; and
provide that the termination of the parental duties and
responsibilities of the parent(s) may be waived by agreement
of the parent(s) and the prospective adoptive parent.
BACKGROUND
Existing law provides a number of ways a person may be legally
considered a parent of a child. These presumptions of parentage
can arise by nature of giving birth, a biological connection to
(more)
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the child, because of one's marital status, or the 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. Because of the variety of these presumptions available
under law, it is possible for more than two people to have
claims to parentage. 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. (Fam. Code. Sec.
7612(b).)
The question of how many legal parents a child can have,
however, is not entirely clear under statutory law. In Elisa B.
v. Superior Court (2005) (37 Cal.4th 108, 118, fn.4), the
California Supreme Court noted that the question of whether a
child could have more than two legal parents was undecided.
Then, 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.) Currently, five 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 primary 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).) In C.E.W. v. D.E.W. a Maine court explained that
a child may have a non-biological parent with all the rights and
responsibilities of parentage in addition to two
legally-recognized biological parents. (845 A.2d 1146, 1149-51
(Me. 2004).) Louisiana provides by statute that a child may
have two fathers and a mother where the mother's husband is not
the biological father. (La. Civ. Code, Art 134.) 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 has 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, Secs. 8-201, 8-202.) Similarly, the District of
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Columbia recognizes that a de facto parent has the same rights
and responsibilities of parents. (DC ST Sec. 16-831.01.)
Accordingly, this bill would provide 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 recognizing only two parents would be
detrimental to the child. This bill would include legislative
intent language, and provide guidance to courts in determining
custody, visitation, and child support in the event that a court
finds a child has more than two parents.
This bill is substantially similar to SB 1476 (Leno, 2012),
which was vetoed by Governor Brown. The Governor wrote, "I am
sympathetic to the author's interest in protecting children. But
I am troubled by the fact that some family law specialists
believe the bill's ambiguities may have unintended consequences.
I would like to take more time to consider all of the
implications of this change."
CHANGES TO EXISTING LAW
Existing law 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. (Fam. Code Sec. 7601.)
Existing law provides that domestic partners shall have the same
rights, protections, and benefits, and shall be subject to the
same responsibilities, obligations and duties under law as are
granted to and imposed on spouses. (Fam. Code Sec. 297.5.)
Existing law provides that a "natural" parent and child
relationship between the child and the mother may be established
by proof of her having given birth to the child, or as provided
under the Uniform Parentage Act. Existing law provides that a
parent child relationship between the child and the father may
be established under the Uniform Parentage Act. Existing law
provides that a "natural" parent and child relationship between
a child and an adopted parent may be established by proof of
adoption. (Fam. Code Sec. 7610.)
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Existing law provides that a man is presumed to be the natural
father if:
he and the child's natural mother are or have been married to
each other and the child is born during the marriage or within
300 days after the marriage is terminated;
before the child's birth, he and the child's natural mother
have attempted to marry each other and the child is born
before or within 300 days of the marriage being declared
invalid;
after the child's birth, he and the child's mother married or
attempted to marry and he is named as the father on the
child's birth certificate or he is obligated to support the
child by voluntary promise or order of the court;
he receives the child into his home and openly holds the child
out as his natural child; or
he signs a voluntary declaration of paternity. (Fam. Code Sec.
7611.)
Existing case law provides that presumptions of parentage apply
equally to women (In re Elisa B. (2005) 37 Cal.4th 108; Fam.
Code Sec. 7650(a).) Existing law provides that these
presumptions apply regardless of a parent's biological tie to
the child, and that the term "natural" parent means any legally
recognized parent other than an adoptive parent. (In re Nicholas
H. (2002) 28 Cal.4th 56.)
Existing law provides that where two or more presumptions of
paternity conflict under existing law, the presumption which on
the facts is founded on the weightier considerations of policy
and logic control. (Fam. Code Sec. 7612(b).)
Existing law provides that a presumption of parentage found
under Family Code Section 7611 is rebutted by a judgment
establishing paternity of the child by another man. (Fam. Code
Sec. 7612(c).)
Existing law states the factors the court shall consider in
determining the best interest of the child including:
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, as specified;
the nature and amount of contact the child has with both
parents;
the habitual or continual illegal use of controlled substances
or alcohol by either parent; and
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any other factors the court finds relevant. (Fam. Code Secs.
3011, 3020.)
Existing law provides that custody of a child should be granted
in a specific order of preference; and provides that the court
and the family use the widest discretion to choose a parenting
plan that is in the best interest of the child. (Fam. Code Sec.
3040.)
Existing law establishes a statewide uniform guideline for
calculating child support, and provides a rebuttable presumption
that the formula results in a correct amount. This presumption
may be rebutted by, among other factors, the fact that
application of the formula would be unjust or inappropriate due
to special circumstances. (Fam. Code Secs. 4055, 4057.)
Existing law requires the court to follow specified principles
in the implementation of the statewide uniform guideline,
including:
that it is a parent's obligation and responsibility to support
his or her child;
the presumption that a parent with primary custody contributes
a significant amount of financial resources to the children;
and
that because children should share in the standard of living
of both parents, child support may therefore improve the
standard of living of the custodial household. (Fam. Code Sec.
4053.)
Existing law provides that the effect of an adoption is to
terminate the parental rights and duties of the birth parents
(Fam. Code Sec. 8217), but that when an existing parent seeks to
add a second parent through adoption without terminating the
existing parent's rights, the parties to the adoption can waive
the termination of the existing parental rights. (Sharon S. v.
Superior Court (2003) 31 Cal.4th 417.)
This bill would include legislative intent language related to
authorizing a court to find that a child has more than two
parents.
This bill would allow a court to find that more than two persons
with a claim to parentage are parents if the court finds that
recognizing only two parents would be detrimental to the child,
and would require the court, in determining detriment to the
child, to consider all relevant factors, including the harm of
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removing the child from a stable placement with a parent who has
fulfilled the physical and psychological needs of the child, and
assumed that role for a substantial period of time, as
specified.
This bill would provide that unless a court orders otherwise, a
presumption of parentage is rebutted by a judgment establishing
paternity by another man.
This bill would provide that a child may have a parent and child
relationship with more than two parents, and require, for the
purposes of state law, any legal reference, as specified, to two
parents be interpreted to apply to all of a child's parents.
This bill would require, in cases where a child has more than
two parents, the court to allocate custody and visitation among
the parents based on the best interest of the child, as
specified. This bill would also authorize the court, if in the
best interest of the child, to create an order where not all
parents share legal or physical custody.
This bill would require a court to apply the statewide uniform
child support guideline in any case where a child has more than
two parents.
This bill would provide, consistent with existing law, that the
presumption that the guideline amount of support is correct may
be rebutted if the court finds that the application of the
guideline would be unjust or inappropriate. The court would
then be required to 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, and
apply the principles set forth in Family Code Section 4053
(requires the court to consider, among other factors, a parent's
obligation to support his or her child, and the presumption that
a parent with primary custody contributes significant financial
resources to the children).
This bill would provide that the termination of parental duties
and responsibilities may be waived by agreement of the existing
parent(s) and the prospective adoptive parent(s) when a child is
adopted.
COMMENT
1.Stated need for the bill:
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In support of this bill, the author writes:
SB 274 protects children from harm by preserving the bonds
between children and their parents, rather than preventing
courts from recognizing that children may sometimes have more
than two parents where severing one of these bonds would be
detrimental to the child. 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 acknowledgement of more than two of those parents may
keep the child out of foster care by giving the court more
placement options.
2.This bill addresses concerns previously expressed by family
law groups and Governor
Two family law organizations submitted opposition to the prior
version of this bill, SB 1476 (Leno, 2012), and the Governor
vetoed that bill largely based on their concerns. Although
these groups stated their support for the intention of the bill,
they raised concerns regarding how the recognition of children
with more than two parents would apply to the various rights and
responsibilities of parentage, how child support would be
calculated, and whether that support calculation would violate
federal child support enforcement regulations.
The author has worked with these and other family law groups to
address these concerns. Significantly, this bill would provide
that all of the rights and responsibilities of parentage arising
under state law, administrative regulations, court rules,
government policies, common law, and any other provision or
source of existing law apply equally to every legal parent where
a child is found to have more than two parents. Thus, this bill
would clarify that any source of existing law that is worded to
apply to only two parents must be applied equally to more than
two parents.
Additionally, the provisions discussed below give guidance to
courts in finding whether a child has more than two parents, and
in awarding custody, visitation, and support in the event that
the court has made that finding.
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a. Detrimental to a child standard
This bill would authorize a court to find that a child has
more than two parents if the court finds that recognizing only
two parents would be detrimental to the child. SB 1479 (Leno,
2011) would have authorized a court to find more than two
parents if "required to serve the best interests of the
child." Stakeholders, however, raised the concern that it may
not be clear to courts whether to apply a standard "best
interests" analysis or the heightened, "as required to serve
the best interests" analysis. Thus, SB 274 requires the court
to consider whether recognizing only two parents would be
detrimental to a child, a standard largely derived from
existing statutory law. (Fam. Code Sec. 3041.)
Related to the provisions of this bill, it appears as though
applying a "detriment" standard would be functionally similar
to the analysis a court would have undertaken for SB 1476.
However, requiring a court to perform the "detriment" analysis
under this bill will arguably eliminate confusion.
b. Custody and visitation orders
This bill would require, in cases where a child has more than
two parents, the court to allocate custody and visitation
among the parents based on the best interest of the child,
consistent with existing law. In determining the best
interest of the child, the court would be required to look to
addressing the child's need for continuity and stability by
preserving established patterns of care and emotional bonds.
This bill would authorize the court to order that not all
parents share legal or physical custody of the child.
The author writes that this bill, "provides guidance for
courts in addressing issues of custody and child support in
the rare cases where children have more than two legal
parents. In most of these cases, only one or two parents
should have custody, and the other parents would have
visitation. For example, in a case where a child who has been
raised by a mother and non-biological father, but also had a
relationship with her biological father, it is likely that not
all three parents have been primary caregivers, so not all of
them should be granted custody."
c. Child support guidelines
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This bill would provide that, consistent with existing
California and federal law, child support must first be
calculated using the statewide uniform guideline, but if the
result would be unjust or inappropriate, the court may rebut
this presumption that the guideline support is correct. If
the court rebuts this presumption, the bill provides guidance
that an appropriate and just award should be ordered following
the principles set forth in the Family Code (Fam. Code Sec.
4053).
The statewide uniform guideline provides a formula for
calculating child support, which takes into account parents'
income and the percentage of time the parents spend with the
child. This equation appears to have only been applied to
two-parent families. Regarding support calculations in
families with more than two parents, the Assembly Judiciary
Committee noted in its discussion of SB 1476 (Leno, 2012) how
the state guideline may be used. "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." (Assem. Com. on
Judiciary, Analysis of Sen. Bill No. 1476 (2011-2012 Reg.
Sess.) as amended May 25, 2012, p. 6.)
If the statewide uniform guideline produces a support amount
which would be inappropriate or unjust as applied in a
particular situation, the court must look to existing
principles in fashioning an appropriate child support award,
including all parents' actual income and amount of time spent
with the child, the ability of each parent to pay for the
support of the child, and the fact that children should share
in the standard of living of the parents.
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d. Clarification regarding termination of parental rights
SB 274 would also codify the holding in Sharron S. v. Superior
Court (2003) 31 Cal.4th 417 that allowed second parent
adoptions. A second parent adoption is a procedure where a
second parent adopts the child without terminating the rights
of the existing parent, similar to a stepparent adoption.
Sharon S. held that when a birth mother's partner sought to
become a second parent through adoption, the parties may waive
the termination of the existing parent's rights under Family
Code Section 8617.
3.The number of cases this bill will affect is limited by two
provisions of the bill
In response to SB 1476 (Leno, 2012) (see Background), family law
groups also raised concerns that the number of parents a child
could have would not be subject to any limitation, thus
resulting in family situations with many parents who might all
have conflicting views. This concern that there would be no cap
to the number of parents a child may have is mitigated by two
provisions of the bill that would limit the number of
individuals who would qualify as legal parents. First, a
potential parent must meet an existing presumption of parentage
before a court may consider whether he or she may be a legal
parent. Secondly, the court may allow for more than two
natural parents only where finding otherwise would be
detrimental to the child.
a) Presumptions of parentage under existing law will not
change
Existing law provides that a mother is a parent by proof of
having given birth to a child, and provides a variety of ways
that a father can be presumed a parent. (See Background; Fam.
Code Secs. 7610, 7611.) Existing law also provides that
domestic partners have the same rights, protections, benefits,
responsibilities, obligations, and duties under law as
spouses. (Fam. Code Sec. 297.5.) Accordingly, a woman who is
a registered domestic partner may be presumed to be a mother
of a child that her partner gives birth to. (Fam. Code Secs.
7611(b), 297.5.) A person who registered as a domestic partner
with the birth mother after the birth of a child, if he or she
is also listed on the birth certificate or is obligated to
support the child, will also be presumed a parent. (Fam. Code
Secs. 7611(c), 297.5.) Because this bill affects only how
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presumptions of paternity are rebutted, it will not affect
stepparent adoptions or other types of visitation that may be
awarded by courts to family members. It is the author's
intent that this bill affect only the legal status of adults
who meet existing presumptions of parentage.
In situations where non-biological adults are acting as
parents, and fit in one of the presumptions of parentage
outlined by law, more than two adults can have a claim of
parentage. The number of potential parents is limited,
however, by the number of persons who can claim parentage
under existing law. It is difficult to think of a situation
where a non-biological parent who does not live with the child
will qualify as a presumed parent.
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b) The court may only find that a child has more than two
parents only if recognizing only two parents would be
detrimental to the child
This bill would require, when more than two adults have a
claim to parentage, the court to consider whether only
recognizing two parents would be detrimental to the child. In
determining detriment to the child, the court would be
required to consider all relevant facts, including, but not
limited to, the harm of removing the child from a stable
placement with a parent who has fulfilled the physical and
psychological needs of the child, and assumed that role for a
substantial period of time.
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. (Fam. Code Sec. 7612(b).) Courts therefore,
under current law, apply a critical analysis to situations
where more than two presumptions exist. This bill would add
to the court's considerations that a court may find more than
two parents only if finding otherwise would be detrimental to
the child. Furthermore, unless detriment is found, a court
may not recognize more than two legal parents.
Thus, even in the event that more than two adults fit a
presumption of parentage, a court would not be required to
find that a child has more than two legal parents unless
finding otherwise would be detrimental to the child.
Accordingly, the number of families with more than two legal
parents will be limited by judicial discretion.
Support : California Alliance; Capitol Resource Institute;
Equality California; Legal Services for Children; Our Family
Coalition; Public Counsel; an individual
Opposition : Capitol Resource Institute
HISTORY
Source : Children's Advocacy Institute; National Center for
Lesbian Rights
Related Pending Legislation : None Known
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Prior Legislation : SB 1476 (Leno, 2012) was substantially
similar to this bill. SB 1476 was vetoed by Gov. Brown.
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