BILL ANALYSIS                                                                                                                                                                                                    Ó



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          SENATE THIRD READING
          SB 274 (Leno)
          As Amended May 14, 2013
          Majority vote 

           SENATE VOTE  :28-11  
           
           JUDICIARY           7-2         APPROPRIATIONS      12-5        
           
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          |Ayes:|Wieckowski, Alejo, Chau,  |Ayes:|Gatto, Bocanegra,         |
          |     |Dickinson, Garcia,        |     |Bradford,                 |
          |     |Muratsuchi, Stone         |     |Ian Calderon, Campos,     |
          |     |                          |     |Eggman, Gomez, Hall,      |
          |     |                          |     |Holden, Pan, Quirk, Weber |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Wagner, Maienschein       |Nays:|Harkey, Bigelow,          |
          |     |                          |     |Donnelly, Linder, Wagner  |
          |     |                          |     |                          |
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           SUMMARY  :  Permits a court, in appropriate cases, to find that a  
          child has more than two legal parents.  Specifically,  this bill  :  


          1)Provides that nothing in the Uniform Parentage Act (UPA)  
            should be construed to preclude a finding that a child has a  
            parent-child relationship with more than two parents.   
            Provides that every reference to parent in statutes,  
            regulations, rules, policies and case law shall be interpreted  
            to apply to every parent of a child who is found to have more  
            than two parents.

          2)Provides that, unless a court orders otherwise, a presumption  
            of paternity is rebutted by a judgment establishing paternity  
            by another person. 

          3)Provides that, in an appropriate action, a court may find that  
            more than two persons with a claim for parentage are parents  
            if the court finds that recognizing only two parents would be  
            detrimental to the child.  In determining detriment, requires  
            the court to consider all relevant factors, including the harm  
            of removing the child from a stable placement with a parent  
            who has fulfilled the child's physical and psychological needs  








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            for a substantial period of time.  Provides that a finding of  
            detriment to the child does not require a finding of unfitness  
            of any person.  

          4)Provides that in any case where a child has more than two  
            legal parents, the court shall allocate custody and visitation  
            among the parents based on the best interest of the child,  
            including, but not limited to addressing the child's need for  
            continuity and stability by preserving established patterns of  
            care and emotional bonds.  States that the court may order  
            that not all parents share legal or physical custody of the  
            child, if the court finds that would not be in the child's  
            best interest, as provided.

          5)Provides that the statewide, uniform child support guideline  
            applies in any case in which a child has more than two legal  
            parents, and the court shall apply the guideline by dividing  
            the child support obligations among the parents based on  
            income and the amount of time each parent spends with the  
            child, as provided.  Permits the presumption that the  
            guideline is correct to be rebutted if the court finds that  
            application of the guideline would be unjust or inappropriate  
            due to special circumstances, as provided.  In that case,  
            requires the court to divide the child support obligations  
            among the parents in a manner that is just and appropriate  
            based on income and time spent with the child.

          6)Provides that 5) above, shall not be construed to require  
            reprogramming of the California Child Support Automation  
            System, a change in the child support guideline, or a revision  
            in any Department of Child Support Services' (DCSS)  
            regulations, policies, procedures, forms or training  
            materials.

          7)Permits the termination of parental duties and  
            responsibilities for existing parents of a child to be adopted  
            to be waived by agreement of the existing parents and the  
            prospective adoptive parents.

          8)Makes the following legislative findings:

             a)   Most children have two parents, but in rare cases  
               children may have more than two people who are that child's  
               parent in every way.  Separating a child from a parent has  








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               a devastating psychological and emotional impact on the  
               child and courts must protect children from this harm.

             b)   The purposes of the bill is to abrogate the holding in  
               In re M.C. (2011) 195 Cal.App.4th 197, insofar as that case  
               held that when more than two people claim parentage under  
               the UPA, courts are prohibited from recognizing more than  
               two of these people as parents.

             c)   This bill does not change the requirements for  
               establishing parentage under the UPA.

             d)   It is the intent of the Legislature that this bill only  
               apply in rare cases where a child truly has more than two  
               parents.

           EXISTING LAW  :

          1)Establishes 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.  

          2)Provides that the child of a wife who is living with her  
            husband, who is not sterile, is conclusively presumed to be a  
            child of the marriage, except as provided.  

          3)Defines a man as a presumed father if, among other things:  a)  
            He was married to the child's mother and the child was born  
            within 300 days of the marriage; b) he attempted to marry the  
            child's mother; or c) he holds the child out as his own.   
            Requires that these presumptions be applied gender neutrally.   
            (Family Code Section 7611; Elisa B. V. Superior Court (2005)  
            37 Cal.4th 108.)

          4)Provides that if two or more paternity presumptions conflict  
            with one another, the presumption that is founded on the  
            weightier considerations of policy and logic controls.   
            Provides that a presumption of parentage under Family Code  
            Section 7611 is rebutted by a judgment establishing paternity  
            of the child by another person.  









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          5)Provides that paternity may be established by voluntary  
            declaration for unmarried parents, or through a civil action  
            brought by any interested party, as specified.  

          6)Provides that domestic partners 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.  
           
           7)Provides that a parent and child relationship between the  
            child and the mother may be established by proof of her having  
            given birth to the child.  Provides that a parent and child  
            relationship between the child and an adopted parent may be  
            established by proof of adoption.   
           
          8)Outlines factors the court shall consider in determining the  
            best interest of the child, including, among others, 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; the nature and amount of contact the child has with  
            both parents; and any other factors the court finds relevant.   


          9)Provides that custody of a child should be granted in the  
            following order of preference:  to parents jointly; to either  
            parent taking into consideration which parent is more likely  
            to allow the child frequent and continuing contact with the  
            noncustodial parent; to the person in whose home the child has  
            been living in a wholesome and stable environment.  Allows the  
            court and the family the widest discretion to choose a  
            parenting plan that is in the best interest of the child.  

          10)Provides a formula for calculating child support, and  
            provides a rebuttable presumption that the formula results in  
            a correct amount.  This presumption can be rebutted by, among  
            other factors, the fact that application of the formula would  
            be unjust or inappropriate due to special circumstances.  

           FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee:

          1)Minor costs to DCSS. 









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            Because it is likely that there will be few cases where a  
            court finds that a child has more than two parents, DCSS  
            should not need to reprogram the statewide child support  
            automation system or make any changes to its uniform  
            guidelines. 

          2)Minor costs to the courts to the extent that this change  
            results in an increase in court time related to determining  
            child support obligations. 

          3)To the extent a court establishes more than two parents and  
            this bill allows a third parent to take custody of child who  
            would otherwise be placed in foster care, it would result in  
            minor savings to the child welfare system.  
           
          COMMENTS  :  Legal parenthood can be established in a number of  
          different ways.  A man is conclusively presumed to be the father  
          of a child if he was married to, or in a registered domestic  
          partnership with, and cohabitating with the child's mother,  
          except as specified.  A man who receives a child into his home  
          and holds the child out as his own is also presumed a father of  
          the child.  A man who signs a voluntary declaration of paternity  
          is presumed to be the legal father of a child.  While the  
          statutory scheme uses the word "father," the presumptions must  
          be applied gender neutrally, so they apply to mothers as well,  
          see, e.g., Elisa B. V. Superior Court (2005) 37 Cal.4th 108, and  
          the Assembly Judiciary Committee's AB 1403, now with the Senate  
          Appropriations Committee, does just that.

          Because of the presumptions of paternity available under law, it  
          is possible, in very limited situations, for more than two  
          people to claim parentage of a child.  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.   
          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.)  This bill instead provides 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, but only if it would be detrimental to  
          the child not to do so.  
              








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          The need for greater flexibility in the number of legal parents  
          was clarified in 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 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, hoping to place the  
          child with the father, but the court of appeals reversed,  
          potentially depriving the child of a loving father, 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  
               determinations, which will profoundly impact families,  
               children and society, are best left to the  
               Legislature.  (Id. at 214.)
           
           Currently, several 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.   
          Additionally, California law now recognizes tribal customary  
          adoption, which can permit a child to have four parents.  While  
          cases involving more than two parents are, almost by definition,  
          complicated and will require courts to balance many competing  
          interests, courts must already do so today.  This bill simply  
          expands this, in very narrow situations when necessary to  
          prevent detriment to the child.
           

          Analysis Prepared by  :    Leora Gershenzon / JUD. / (916)  
          319-2334








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