BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1337 (Alejo)
As Amended May 25, 2012
Hearing Date: June 12, 2012
Fiscal: No
Urgency: No
NR
SUBJECT
Parent and Child Relationship
DESCRIPTION
In an action to determine paternity where one parent has died
and there are no existing orders or pending actions involving
custody or guardianship before the court, this bill would
require notice of the proceeding be given to, as specified, the
child's relatives within the second degree, and to any other
person(s) having physical custody of the child.
BACKGROUND
Under existing law, children born out of a marriage are the
legal children of both parents. Only legal parents have a right
to custody and to make legal decisions for a child; children
have a right to support only from legal parents. Birth mothers
are legal parents by proof of having given birth to the child,
but all other unmarried parents must take steps to establish
legal paternity. Existing law allows a parent to bring an
action in court to establish a father - child relationship, or
parentage, but the procedure requires the other parent be a
party to the action and served with notice of the action. As a
general rule, under existing law, when a parent dies the
surviving parent is entitled to custody. However, if legal
parentage has not been established, which requires judicial
action for children born outside of marriage, a child may be
left without a legal parent or support when his or her legal
parent dies.
This bill would resolve this problem by creating a procedure to
(more)
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establish a father - child relationship, or parentage, when the
other parent has died and there are no other custody or
guardianship actions or orders before the court. By requiring
notice to those with custody of the child as well as the child's
surviving family, this bill would ensure that the interests of
the child are represented in the parentage action.
CHANGES TO EXISTING LAW
Existing law provides that there is a compelling state interest
in establishing paternity for all children, with the attendant
financial, medical, and developmental benefits. (Fam. Code Sec.
7570.)
Existing law 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. (Fam. Code Sec. 7601.)
Existing law 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. (Fam. Code Sec. 297.5.)
Existing law 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. Existing law provides that
a parent and child relationship between the child and an adopted
parent may be established by proof of adoption. (Fam. Code Sec.
7610.)
Existing law provides that a child born to married parents who
are cohabiting is presumed to be a child of the marriage. This
presumption becomes conclusive two years after the child's
birth. (Fam. Code Secs. 7540 and 7041.)
Existing law provides that a man is presumed to be the natural
father if:
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;
before the child's birth, he and the child's natural
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mother have attempted to marry each other and the child is
born before or within 300 days of the marriage being
declared invalid;
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;
he receives the child into his home and openly holds the
child out as his natural child; or
he signs a voluntary declaration of paternity. (Fam.
Code Sec. 7611.)
Existing law provides that a civil action to declare the
existence or non-existence of a parent-child relationship may be
brought by, among others, the child, the child's mother, a man
presumed to be the child's father, or prospective adoptive
parents. (Fam. Code Sec. 7630.)
Existing law provides that if one parent is dead, is unable or
refuses to take custody, or has abandoned the child, the other
parent is entitled to custody of the child. (Fam. Code Sec.
3010.)
This bill would provide that in an action to determine the
existence of a parent-child relationship when one parent has
died and there are no existing court orders or pending actions
involving custody or guardianship of the child, the person
seeking to establish paternity must provide notice to
individuals having physical custody of the child and relatives
of the child within the second degree.
This bill would provide that if the above individuals cannot be
located, the court would be required to prescribe the manner of
giving notice.
This bill would require that proof of the notice given to those
in custody of the child be filed with the court prior to the
hearing on the motion to determine the existence of the
parent-child relationship.
COMMENT
1.Stated need for the bill
In support of this bill, the author writes:
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Current law allows a child, and the child's natural mother or
the child's presumed father to bring an action to establish
legal parentage, but the procedure to bring that action
generally requires that the other parent be a party to the
action and served with notice. If that parent is dead, there
is no clear procedure to establish parentage.
By providing a new process, this bill should help ensure that
children who have lost one parent can still have a parent who
is legally responsible to care for them and support them.
2.This bill would create clear procedures and guidelines for
parentage actions where one parent is deceased
Under existing law, any interested party may bring an action for
the purpose of determining the existence or non-existence of a
father and child relationship, but these actions generally
require notice to the legal parent. (Fam. Code Sec. 7630(b).)
Because the issue of notice when a parent has died has not been
determined, there is confusion and a lack of consistency among
courts regarding who is able to come forward and what parties
must be noticed. Unpredictability in the legal system produces
inconsistent results, creates significant difficulty for
self-represented litigants, and can drive up the cost of
litigation.
Regarding this provision, the Judicial Council writes:
AB 1337 will fill the existing gap by providing clear
information for the court on what is required to establish
parentage under these circumstances. ? �T]he existence of a
clear procedure will allow court self-help center staff to
provide legal information on what is required to establish
parentage in these actions so that self-represented litigants
can access the courts and obtain the relief they are seeking
in an efficient and just manner.
By providing guidelines and procedures for establishing
parentage when one parent is deceased, this bill would encourage
consistent and predictable treatment of litigants in these
proceedings.
3.The best interests of the child are more likely achieved when
all interested parties are represented
Under existing law a parent must be noticed when the other
parent files a parentage action, yet the law is silent regarding
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notice in parentage actions when one parent has died. This bill
would require a child's relatives within the second degree and
the persons having custody of the child to be noticed of a
paternity action if the legal parent has died. The provisions
of this bill would only apply in situations where there are no
existing orders or pending actions regarding custody or
guardianship, ensuring that the parentage action by a
non-custodial parent would not upset the existing custody plans
of the deceased parent.
Existing law provides that the state has a compelling interest
in establishing parentage for all children with the attendant
financial, medical, and developmental benefits that parentage
provides. (Fam. Code Sec. 7570.) Paternity is conclusively
presumed for children born out of a marriage, as specified, but
there are a number of ways a father can establish paternity
outside of marriage. He can sign a voluntary declaration of
paternity, or he and the legal mother can bring an action in
court to establish a parental relationship if the father
satisfies a presumption of paternity under existing law. (Fam.
Code Sec. 7611.) However, if a legal parent has died, there is
no clear procedure to establish parentage for the surviving
parent who has not yet established paternity.
In the event of a parent's death, there may be many people who
are interested in the welfare of a child and feel entitled to
custody, including surviving parents, grandparents, custodial
guardians, god parents, or siblings. There may also be
situations where no interested parties exist or are notified so
that they may come forward, and the child will ultimately be
placed in foster care. In the vast majority of situations,
courts prefer to place children in safe homes with relatives or
adults the children know over with strangers in foster homes.
In support of this bill, the Judicial Council writes,
"�p]roviding notice to those with the custody of the child as
well as the child's surviving family will ensure that the
interests of the child are represented in the parentage action."
Arguably, if family members and custodians are not represented,
it is unlikely that a court will be able to consider how each
person would contribute to a child's well-being. However, if
all interested parties are before the court, a judge will be
able to fashion custody and support orders that take into
account the unique situation and capacity of all parties. A
hypothetical order may consist of custody with grandparents,
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with child support and visitation from the father, and all
parties sharing in the educational and health decisions of the
child.
By requiring notice to those most likely to have an interest in
a child's welfare when a party brings an action to establish
parentage after the other parent has died, this bill may help
ensure courts will have the information necessary to make
decisions in the best interest of a child.
Support : Association of Certified Family Law Specialists
(ACFLS); Judicial Council of California
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 67, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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