BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
SB 274 (Leno) - Parentage: Child Custody and Support
Amended: May 14, 2013 Policy Vote: Judiciary 5-2
Urgency: No Mandate: No
Hearing Date: May 20, 2013 Consultant: Jacqueline
Wong-Hernandez
This bill does not meet the criteria for referral to the
Suspense File.
Bill Summary: SB 274 provides that a child may have a parent and
child relationship, as defined by the Uniform Parentage Act
(UPA), with more than two parents, and 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. 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 interests of the child, and
provide that the statewide uniform child support guideline shall
apply in any case in which a child has more than two parents.
Fiscal Impact:
Courts: Likely less than $25,000 annually. Minor increase
in court time, and related costs to determine child support
obligations by deviating from the statewide uniform
guideline and adjusting the child support payment formula,
as specified.
Department of Child Support Services (DCSS): Likely minor
costs to the extent that support orders involving more than
two parents are administered and enforced by the department.
Background: Existing law, the California UPA, defines a parent
and child relationship as the legal relationship existing
between a child and the child's natural or adoptive parents
incident to which the law confers or imposes rights, privileges,
duties and obligations. The term includes the mother and child
relationship and the father and child relationship. (Fam. Code §
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7600 et seq.)
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 § 4055)
Existing law also requires the court to follow specified
principles in implementing the statewide uniform guideline,
including: 1) that it is a parent's obligation and
responsibility to support his or her child; 2) the presumption
that a parent with primary custody contributes a significant
amount of financial resources to the children; and, 3) 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.
Under existing law, the parents of a minor child are responsible
for supporting the child.
The courts are required to adhere to the statewide uniform
guideline but may depart from the guideline under special
circumstances, as specified. In order to comply with federal
law, the court is required to state in writing, or on the
record, the following information whenever the court is ordering
an amount for support that differs from the statewide uniform
guideline formula amount: 1) The amount of support that would
have been ordered under the guideline formula; 2) The reasons
the amount of support ordered differs from the guideline formula
amount; and, 3) The reasons the amount of support ordered is
consistent with the best interests of the children.
The Judicial Council is required to periodically review the
statewide uniform guideline to recommend to the Legislature
appropriate revisions in consideration of changes required by
federal laws and regulations. The review is to occur at least
every four years unless federal law requires a different
interval. In developing its recommendations, the Judicial
Council is required to consult with a broad cross-section of
groups involved in child support issues and subsequently seek
public comment.
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DCSS works with local entities to ensure children and families
receive court-ordered child support, and with the federal
government to ensure state compliance with federal regulations.
Child support services are available to the general public
through a network of 51 county and regional child support
agencies that serve approximately 1.4 million children and
families. Services include locating a parent; establishing
paternity; establishing, modifying and enforcing a court order
for child support; and establishing, modifying, and enforcing an
order for health coverage.
Proposed Law: 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 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 also:
1) 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.
2) 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.
3) Require a court to apply the statewide uniform child
support guideline in any case where a child has more than
two parents. It would also provide, consistent with
existing law, that the presumption that the guideline is
correct may be rebutted if the court finds that the
application of the guideline would be unjust or
inappropriate, as specified.
4) Provides that it shall be construed to require
reprogramming of the California Child Support Automation
System (CCSAS), a change to the statewide uniform guideline
for determining child support, or a revision by the DCSS of
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its regulations, policies, procedures, forms, or training
materials.
Related Legislation: SB 1476 (Leno) 2012 was substantially
similar to this bill. SB 1476 was vetoed by Governor Brown, with
the following veto message:
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.
Staff Comments: This bill would allow, in accordance with
specific determinations, for a court to deem a child to have
more than two parents, for the purposes of custody, visitation,
and child support. This bill provides that a court may find that
a child has more than two parents only if the court finds that
recognizing only two parents would be detrimental to the child.
This bill further provides that its intent is to abrogate In re
M.C. (2011) 195 Cal.App.4th 197.
In that case, a juvenile court found that three parents were a
child's presumed parents - the biological mother, the child's
presumed mother, by virtue of her marriage to the biological
mother, and the biological father, who conceived the child with
the biological mother during a premarital relationship. The
child was placed in foster care as a result of the biological
mother's involvement in the stabbing of the child's presumed
mother. The juvenile court recognized all three parents, with
the goal of placing the child with the father. However, the
court of appeals reversed, writing that such recognition lies,
more appropriately, with the Legislature:
M.C. and the amicus curiae invite us to employ this case as a
vehicle to highlight the inadequacies of the antiquated UPA to
accommodate rapidly changing familial structures and the need
to recognize and accommodate novel parenting relationships. We
agree these issues are critical, and California's existing
statutory framework is ill equipped to resolve them. But even
if the extremely unusual factual circumstances of this
unfortunate case made it an appropriate action in which to
take on such complex practical, political and social matters,
we would not be free to do so. Such important policy
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determinations, which will profoundly impact families,
children and society, are best left to the Legislature.
This bill seeks a legislative solution for a narrow scope of
cases. It requires the court to allow for more than two parents
only when it would specifically be detrimental to the child not
to do so, (in contrast to the broader "in the best interests of
the child" to do so).
The Judicial Council has indicated there would likely be minimal
impact to the courts' workload related to a finding of more than
two legal parents, as all hearings related to parent-child
relationships require an analysis of the child's best interests.
The additional workload on courts to determine child support
payment amounts separate from the established statewide uniform
guideline is dependent upon the number of cases involved, but is
likely to be minor.
This bill is unlikely to necessitate changes in the CCSAS,
because the initial support order has to be determined by the
court. The court must make the finding of a child having more
than two parents and, at the same time, calculate the support
order. If the DCSS were to subsequently manage the order (it
does not manage all child support exchanged among parents in the
state), it would only be responsible for recalculating the order
upon parental request due to a change in circumstances. Even
then, it would be working from the court's initial
determination. Additionally, this bill specifies how the
statewide uniform guideline should be applied to more than two
parents. In these rare cases, with an even smaller number (if
any) involving DCSS, the department should be able to manage
support orders without a system change.
This bill specifically provides that nothing in this section
shall be construed to require reprogramming of the CCSAS, a
change to the statewide uniform guideline for determining child
support described in Fam. Code Section 4055, or a revision by
the DCSS of its regulations, policies, procedures, forms, or
training materials.