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