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)



          SB 274 (Leno)
          Page 2 of ?



          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  
                                                                      



          SB 274 (Leno)
          Page 3 of ?



          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.)  

                                                                      



          SB 274 (Leno)
          Page 4 of ?



           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
                                                                      



          SB 274 (Leno)
          Page 5 of ?



           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  
                                                                      



          SB 274 (Leno)
          Page 6 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, 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:
                                                                      



          SB 274 (Leno)
          Page 7 of ?



           
          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. 
                                                                      



          SB 274 (Leno)
          Page 8 of ?




              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
                                                                      



          SB 274 (Leno)
          Page 9 of ?



               
            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.   











                                                                      



          SB 274 (Leno)
          Page 10 of ?



              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  
                                                                      



          SB 274 (Leno)
          Page 11 of ?



            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.  
































                                                                      



          SB 274 (Leno)
          Page 12 of ?



              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
                                                                      



          SB 274 (Leno)
          Page 13 of ?





           Prior Legislation  : SB 1476 (Leno, 2012) was substantially  
          similar to this bill.  SB 1476 was vetoed by Gov. Brown.

                                   **************