BILL ANALYSIS Ó SB 274 Page 1 SENATE THIRD READING SB 274 (Leno) As Amended May 14, 2013 Majority vote SENATE VOTE :28-11 JUDICIARY 7-2 APPROPRIATIONS 12-5 ----------------------------------------------------------------- |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 | | | | | | ----------------------------------------------------------------- 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 SB 274 Page 2 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 SB 274 Page 3 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. SB 274 Page 4 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. SB 274 Page 5 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. SB 274 Page 6 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 SB 274 Page 7 FN: 0001427