BILL ANALYSIS �
AB 1337
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1337 (Alejo)
As Amended May 25, 2012
Majority vote
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|ASSEMBLY: |67-0 |(January 17, |SENATE: |36-0 |(June 18, |
| | |2012) | | |2012) |
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Original Committee Reference: JUD.
SUMMARY : Creates a procedure to establish paternity when one
parent has died. Specifically, this bill :
1)Provides 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:
a) Individuals having physical custody of the child. If
such individuals cannot be located, requires the court to
prescribe the manner of giving notice.
b) Relatives of the child, within the second degree, if
known to the person bringing the parentage action. If such
relatives cannot be located, the court must prescribe a
manner of providing notice or dispense with notice to those
individuals.
2)Requires that proof of the notice given under 1) above, be
filed with the court prior to the hearing on the motion to
determine the existence of the parent-child relationship.
The Senate amendments change the manner of providing notice to
relatives of the child within the second degree.
EXISTING LAW :
1)Defines "parent and child relationship" as the legal
relationship between a child and the child's natural or
adoptive parents and through which rights, privileges, duties
and obligations arise.
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2)Provides that a child born to married parents who are
cohabiting is presumed to be a child of the marriage and that
presumption becomes conclusive two years after birth.
3)Provides that a man is presumed to be the father of a child if
he is married to the mother during a specified timeframe
surrounding the child's birth; attempted to marry the mother;
or, if he openly holds himself out to be the father. If two
or more paternity presumptions conflict with one another, the
presumption which is founded on the weightier considerations
of policy and logic controls.
4)Provides that paternity may be established by voluntary
declaration for unmarried parents.
5)Provides that a civil action to either declare the existence
of a parent-child relationship or the nonexistence of such a
relationship paternity 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.
6)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.
7)Allows a court to appoint a guardian of a minor. Requires
that notice of such an action be given to, among others, the
parents of the child and those having legal or actual custody
of the child.
AS PASSED BY THE ASSEMBLY , this bill proscribed a different
method for providing notice to relatives of the child, within
the second degree.
FISCAL EFFECT : None
COMMENTS : Unless legal parentage (paternity) is established, a
parent has no legal rights or responsibilities for a child,
including the right to custody and visitation and the
responsibility to financially support the child, and the child
has no rights, including rights to support and inheritance.
With the exception of married parents, all other parents must
take steps to establish paternity. Under current law, those
steps require involvement by the other parent. If that parent
dies, no clear procedure exists today to establish parentage;
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and, thus, the surviving parent will have no legal rights and
responsibilities for the child. If however, parentage is
established, the surviving parent is entitled to custody of the
child, and the child is entitled to support. This bill
clarifies the procedure that the surviving parent must use to
establish legal parentage and helps ensure that the child has a
legal parent.
There are several different ways to establish parentage. If
parents are married when their child is born, the child is
presumed to be the child of the marriage and that presumption
becomes conclusive after two years. Unless challenged within
two years, no additional steps are necessary for these married
parents to establish parentage.
Unmarried parents can establish paternity very simply when their
child is born by signing a voluntary declaration of paternity at
the hospital. This form, signed under penalty of perjury,
states that both parents are the biological parents of the
child. This form can be rescinded for a short period of time
and can be challenged for two years, but is a conclusive
presumption of paternity after that. A voluntary paternity
declaration can also be signed later, and local child support
agencies assist with that process.
Alternatively, the child, the natural mother, the presumed
father (or adoption agencies or prospective adoptive parents),
or the local child support agency can bring an action for
purposes of declaring paternity (or, in the case of adoptive
parents, declaring the nonexistence of a parent-child
relationship). To do so, a petition to establish a parental
relationship is filed with the court and served on the other
parent. If, however, the other parent is dead, there is no
clear procedure to establish paternity.
This bill sets out the procedure to be used to establish
paternity when one parent has died. The procedure seeks to
provide notice to those individuals most likely to have an
interest in the child, including any person who has physical
custody of the child and, if known to the person seeking to
establish paternity, relatives within the second degree, which
include grandparents and siblings. Since the whereabouts of
those with custody of the child or relatives may not always be
known to the person trying to establish paternity, in those
situations this bill requires the court to prescribe an
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alternative manner of providing legal notice. In the case of
relatives who cannot be located, the court, if appropriate, can
choose to dispense with notice altogether.
The process created by this bill is limited to situations where
there are no existing court orders or pending actions involving
custody or guardianship of the child. In those situations, the
person trying to establish paternity should seek to appear in
the existing legal action. This will help minimize multiple
court actions involving the same child and allow justice to be
served more efficiently and effectively.
These provisions, taken together, help ensure that those most
likely to be interested in the child's welfare have notice of
the paternity action and can seek to participate in it.
However, this bill also ensures that the person trying to
establish paternity has a process by which to do so and can do
so even if he or she cannot locate all possible interested
individuals.
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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0004093