BILL NUMBER: SB 302 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Scott
FEBRUARY 16, 2005
An act to amend Sections 7612, 7630, 7660.5 and 9003 of the Family
Code, relating to adoption.
LEGISLATIVE COUNSEL'S DIGEST
SB 302, as introduced, Scott. Adoption.
Existing law provides that a man is presumed to be the natural
father of a child if certain conditions are met. This presumption may
be rebutted by a judgment establishing paternity of the child by
another man. Existing law also authorizes a child, the child's
natural mother, or, with certain exceptions, a presumed father of the
child to bring an action to determine paternity, as specified.
Existing law provides that if a mother relinquishes for or
consents to, or proposes to relinquish for or consent to, the
adoption of a child who has a presumed father, the father must be
given notice of the adoption proceeding and a child may not be
adopted without his consent, except under specified circumstances.
However, a presumed father may waive his right to notice by executing
a specified form before certain persons, such as a notary public.
Existing law also provides that, in a stepparent adoption, the
consent of either or both birth parents must be signed in the
presence of a county clerk, probation officer, qualified court
investigator, or county welfare department staff member of any county
of this state.
This bill would provide that in an adoption the presumption
described above may also be rebutted by clear and convincing evidence
that another man is the natural father. The bill would authorize a
presumed father to waive his right to notice of adoption proceedings
by executing the form described above before a representative of a
licensed adoption agency or a private child placement agency licensed
by this state. In a stepparent adoption, the bill would authorize
the consent of either or both birth parents to be signed in the
presence of a notary public.
The bill would additionally authorize an adoption agency to whom
the child has been or is proposed to be relinquished or a person who
intends to adopt the child to bring an action to determine paternity.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7612 of the Family Code is amended to read:
7612. (a) Except as provided in Chapter 1 (commencing with
Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2
or in Section 20102, a presumption under Section 7611 is a rebuttable
presumption affecting the burden of proof and may be rebutted in an
appropriate action only by clear and convincing evidence.(b) If two
or more presumptions arise under Section 7611 which conflict with
each other, the presumption which on the facts is founded on the
weightier considerations of policy and logic controls.
(c) The presumption under Section 7611 is rebutted by a judgment
establishing paternity of the child by another man ,
or, in the case of an adoption, by clear and convincing evidence that
another man is the natural father .
SEC. 2. Section 7630 of the Family Code is amended to read:
7630. (a) A child, the child's natural mother, or
a man presumed to be the child's father under subdivision
(a), (b), or (c) of Section 7611, an adoption agency to whom the
child has been , or is proposed to be
, relinquished, or a person who intends to
adopt the child , may bring an action as follows:
(1) At any time for the purpose of declaring the existence of the
father and child relationship presumed under subdivision (a), (b), or
(c) of Section 7611.
(2) For the purpose of declaring the nonexistence of the father
and child relationship presumed under subdivision (a), (b), or (c) of
Section 7611 only if the action is brought within a reasonable time
after obtaining knowledge of relevant facts. After the presumption
has been rebutted, paternity of the child by another man may be
determined in the same action, if he has been made a party.
(b) Any interested party may bring an action at any time for the
purpose of determining the existence or nonexistence of the father
and child relationship presumed under subdivision (d) or (f) of
Section 7611.
(c) An action to determine the existence of the father and child
relationship with respect to a child who has no presumed father under
Section 7611 or whose presumed father is deceased may be brought by
the child or personal representative of the child, the Department of
Child Support Services, the mother or the personal representative or
a parent of the mother if the mother has died or is a minor, a man
alleged or alleging himself to be the father, or the personal
representative or a parent of the alleged father if the alleged
father has died or is a minor.
(d) An action under subdivision (c) shall be consolidated with a
proceeding pursuant to Section 7662 if a proceeding has been filed
under Chapter 5 (commencing with Section 7660). The parental rights
of the alleged natural father shall be determined as set forth in
Section 7664. The consolidated action shall be heard in the court in
which the Section 7662 proceeding is filed, unless the court in which
the action under subdivision (c) is filed finds, by clear and
convincing evidence, that transferring the action to the other court
poses a substantial hardship to the petitioner. Mere inconvenience
does not constitute a sufficient basis for a finding of substantial
hardship. If the court determines there is a substantial hardship,
the consolidated action shall be heard in the court in which the
paternity action is filed.
SEC. 3. Section 7660.5 of the Family Code is amended to read:
7660.5. Notwithstanding any other provision of law, if a presumed
father waives the right to notice pursuant to Section 7660 in
writing by executing a form developed by the department using
existing resources before a representative of a licensed
adoption agency or private child plac ement
agency licensed by this state or before a notary public or
other person authorized to perform notarial acts, no notice,
relinquishment for, or consent to adoption of the child shall be
required from him for the adoption proceeding to proceed. This shall
be a voluntary and informed waiver without undue influence. If the
child is an Indian child as defined under the Indian Child Welfare
Act (ICWA), any waiver of consent by an Indian presumed father shall
be executed in accordance with the requirements for voluntary
adoptions set forth in Section 1913 of Title 25 of the United States
Code. The waiver shall not affect the rights of any known federally
recognized Indian tribe or tribes from which the child or the
presumed father may be descended to notification of, or participation
in, adoption proceedings as provided by the ICWA. Notice that the
waiver has been executed shall be given to any known federally
recognized Indian tribe or tribes from which the child or the
presumed father may be descended, as required by the ICWA.
SEC. 4. Section 9003 of the Family Code is amended to read:
9003. (a) In a stepparent adoption, the consent of either or both
birth parents shall be signed in the presence of a notary
public, county clerk, probation officer, qualified court
investigator, or county welfare department staff member of any county
of this state. The notary public, county clerk, probation
officer, qualified court investigator, or county welfare department
staff member before whom the consent is signed shall immediately file
the consent with the clerk of the court where the adoption petition
is filed. The clerk shall immediately notify the probation officer
or, at the option of the board of supervisors, the county welfare
department of that county.(b) If the birth parent of a child to be
adopted is outside this state at the time of signing the consent, the
consent may be signed before a notary or other person authorized to
perform notarial acts.
(c) The consent, when reciting that the person giving it is
entitled to sole custody of the child and when acknowledged before
the notary public, county clerk, probation officer,
qualified court investigator, or county welfare department staff
member, is prima facie evidence of the right of the person signing
the consent to the sole custody of the child and that person's sole
right to consent.
(d) A birth parent who is a minor has the right to sign a consent
for the adoption of the birth parent's child and the consent is not
subject to revocation by reason of the minority.