BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 274|
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THIRD READING
Bill No: SB 274
Author: Leno (D), et al.
Amended: 5/14/13
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-2, 4/30/13
AYES: Evans, Corbett, Jackson, Leno, Monning
NOES: Walters, Anderson
SENATE APPROPRIATIONS COMMITTEE : 4-2, 5/20/13
AYES: De León, Hill, Padilla, Steinberg
NOES: Walters, Gaines
NO VOTE RECORDED: Lara
SUBJECT : Family law: parentage: child custody and support
SOURCE : Childrens Advocacy Institute
National Center for Lesbian Rights
DIGEST : This bill authorizes a court to find that more than
two persons with a claim to parentage, as specified, are parents
if the court finds that recognizing only two parents is
detrimental to the child; and directs 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.
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ANALYSIS :
Existing law:
1. 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.
2. 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.
3. 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.
4. Provides that a man is presumed to be the natural father if:
A. 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.
B. 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;
C. 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;
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D. He receives the child into his home and openly holds
the child out as his natural child; or
E. He signs a voluntary declaration of paternity.
5. Provides that presumptions of parentage apply equally to
women. 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.
6. Provides that are 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.
7. 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.
8. States the factors the court shall consider in determining
the best interest of the child including:
A. The health, safety and welfare of the child;
B. 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;
C. The nature and amount of contact the child has with
both parents;
D. The habitual or continual illegal use of controlled
substances or alcohol by either parent; and
E. Any other factors the court finds relevant.
9. Provides that custody of a child is 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.
10.Establishes a statewide uniform guideline for calculating
child support, and provides a rebuttable presumption that the
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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.
11.Requires the court to follow specified principles in the
implementation of the statewide uniform guideline, including:
A. That it is a parent's obligation and responsibility
to support his/her child;
B. The presumption that a parent with primary custody
contributes a significant amount of financial resources
to the children; and
C. 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.
12.Provides that the effect of an adoption is to terminate the
parental rights and duties of the birth parents, 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.
This bill:
1. Includes legislative intent language related to authorizing a
court to find that a child has more than two parents.
2. Allows 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 requires 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.
3. Provides that unless a court orders otherwise, a presumption
of parentage is rebutted by a judgment establishing paternity
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by another man.
4. Provides that a child may have a parent and child
relationship with more than two parents, and requires, 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.
5. Requires, 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; and authorizes the court, if in the best interest
of the child, to create an order where not all parents share
legal or physical custody.
6 Requires a court to apply the statewide uniform child support
guideline in any case where a child has more than two
parents.
7. Provides, 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 is
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/her child, and
the presumption that a parent with primary custody
contributes significant financial resources to the children).
8. Provides 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.
9. Clarifies that the bill cannot be construed to require the
reprogramming of the California Child Support Automation
System or the revision by the Department of Child Support
Services of its regulations, policies, forms or training
materials.
Background
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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
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/she has received a child into his/her
home and has openly held that child out as his/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.
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/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. Louisiana provides by
statute that a child may have two fathers and a mother where the
mother's husband is not the biological father. 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
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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.
Similarly, the District of Columbia recognizes that a de facto
parent has the same rights and responsibilities of 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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
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: Likely minor costs to
the extent that support orders involving more than two parents
are administered and enforced by the department.
SUPPORT : (Verified 5/20/13)
Children's Advocacy Institute (co-source)
National Center for Lesbian Rights (co-source)
California Alliance
Capitol Resource Institute
Equality California
Legal Services for Children
Our Family Coalition
Public Counsel
American Academy of Matrimonial Lawyers
Wald and Thorndal P.C.
OPPOSITION : (Verified 5/20/13)
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Capitol Resource Institute
Association of Family Conciliation Courts
ARGUMENTS IN SUPPORT : According to the author's office this
bill 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.
ARGUMENTS IN OPPOSITION : The Capitol Resource Institute
writes, "The bill does not thoughtfully consider the numerous
areas of law affected by such a redefinition of parenthood. A
prior version of bill, SB 1476, was introduced in 2012 and was
vetoed by Governor Brown.
"Capitol Resource Institute strongly opposes SB 274 because it
is detrimental to the best interest of children. Children
thrive n consistent settings and in homes with their biological
mother and father, or with adoptive parents, being male and
female role models.
"This bill only serves to appease the adults and would cause
chaos in the life of the child. Should this bill become law, it
would obfuscate child custody and support proceedings in an
already overburdened court system."
AL:d 5/21/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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