BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 274| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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. CONTINUED SB 274 Page 2 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; CONTINUED SB 274 Page 3 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 CONTINUED SB 274 Page 4 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 CONTINUED SB 274 Page 5 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 CONTINUED SB 274 Page 6 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 CONTINUED SB 274 Page 7 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) CONTINUED SB 274 Page 8 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 **** END **** CONTINUED SB 274 Page 9 CONTINUED