BILL ANALYSIS Ó
SB 274
Page 1
SENATE THIRD READING
SB 274 (Leno)
As Amended August 22, 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
for a substantial period of time. Provides that a finding of
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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, if signed prior to finalization
of the adoption and filed with the court.
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
a devastating psychological and emotional impact on the
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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.
9)Adds chaptering out language with AB 1403 (Judiciary
Committee) of the current legislative session.
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)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.
3)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, as specified, is
rebutted by a judgment establishing paternity of the child by
another person.
4)Provides that paternity may be established by voluntary
declaration for unmarried parents, or through a civil action
brought by any interested party, as specified.
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5)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.
6)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.
7)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.
8)Allows the court and the family the widest discretion to
choose a parenting plan that is in the best interest of the
child.
9)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.
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.
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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.
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,
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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
FN: 0001818