BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1260 (Wright)
As Amended April 25, 2012
Hearing Date: May 8, 2012
Fiscal: No
Urgency: No
NR
SUBJECT
Paternity
DESCRIPTION
This bill would allow a parent, child, or local child protective
services agency to bring a motion to set aside or vacate a
voluntary declaration of paternity based on fraud, duress, or
material mistake of fact within two years of the date the party
bringing the motion knew or should have known that the man who
signed the declaration was not the biological father. This bill
would prohibit a party from challenging a judgment of paternity
if the party knew or should have known that the previously
established father was not the biological father at the time of
the initial action establishing his paternity.
This bill would also change, delete, and reprioritize certain
factors that a court must take into account when considering
whether or not to set aside a voluntary declaration of paternity
or judgment of paternity based on the best interest of a child.
BACKGROUND
It is the policy of the State of California to establish
paternity for all children. Known paternity provides children
and society with attendant financial, medical, and developmental
benefits. To further this policy, the state has developed
various legal mechanisms to establish paternity. For a child
born outside of marriage, paternity may be established by a
voluntary declaration of paternity or through a judgment of
paternity. A voluntary declaration of paternity or a judgment
of paternity allows the court to establish orders for child
support, custody, and visitation.
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A voluntary declaration of paternity becomes a conclusive
presumption if not challenged within two years of execution. A
judgment of paternity becomes a conclusive presumption if not
challenged within two years from the time the previously
established father knew or should have known of the judgment
against him. A proper challenge is filed within the statutory
time period, and may include a request for genetic testing, or
rely on previous genetic tests. If genetic evidence is
presented that the previously established father is not the
biological father, the court is required to consider the best
interest of the child when deciding whether to vacate the
judgment or the voluntary declaration of paternity.
Federal law requires that states adopt certain provisions and
procedures to improve the effectiveness of child support
enforcement in order to receive federal grants, welfare, and
child support assistance. Among these requirements is the
adoption of a procedure by which a party may challenge a
voluntary acknowledgment of paternity on the basis of fraud,
duress, or material mistake of fact, with the burden of proof
upon the challenger. Federal law permits challenges to be
brought within a two-year period beginning when the challenger
knew or should have known the man who signed the declaration was
not the biological father. California law, limits challenges to
two years from the time of birth or the initial paternity
action. California law therefore, meets the federal standard
and offers more protection to children by creating a final
judgment of paternity after two years. (See Changes to Existing
Law.)
This bill would allow a party to challenge a voluntary
declaration of paternity based on fraud, duress, or material
mistake of fact for up to two years from the date that the party
knew or should have known that the established father was not
the biological father.
CHANGES TO EXISTING LAW
Existing law provides that there is a compelling state interest
in establishing paternity for all children, with attendant
financial, medical, and developmental benefits. (Fam. Code Sec.
7570.)
Existing law provides that a voluntary declaration of paternity
has the same force of law as a judgment of paternity, and may be
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used as a basis to establish an order for child custody,
visitation, or child support. (Fam. Code Sec. 7573.)
Existing law provides that either parent may rescind a voluntary
declaration of paternity within 60 days of execution of the
declaration. (Fam. Code Sec. 7575.)
Existing law provides that either parent, or the local social
services agency, may make a motion to set aside or vacate a
voluntary declaration of paternity within two years of the date
of the child's birth. The motion to set aside the declaration
may request an order for genetic testing or may be based upon
prior genetic testing that indicates the previously established
father is not the biological father of the child. (Fam. Code
Sec. 7575.)
Existing law provides that either parent, or their legal
representatives, may make a motion to set aside or vacate a
judgment of paternity within a two-year period, beginning on the
date of the judgment that established paternity or beginning
with the date the previously established father knew or should
have known of an action to adjudicate paternity, whichever is
earlier. The motion to set aside or vacate the judgment may
request an order for genetic testing or may be based upon prior
genetic testing that indicates the previously established father
is not the biological father of the child. (Fam. Code Sec.
7646.)
Existing law provides that if the results of genetic tests
indicate that the previously established father, either through
voluntary declaration of paternity or judgment of paternity, is
not the biological father of the child, the court may deny the
motion to set aside or vacate a voluntary declaration of
paternity based on the best interest of the child. (Fam. Code
Secs. 7575 and 7648.)
Existing law provides certain factors a court must consider in
determining the best interests of the child in an action to set
aside or vacate a voluntary declaration or judgment of paternity
including:
the age of the child;
the nature, duration and quality of the relationship between
the man who signed the voluntary declaration and the child;
the request of the man who signed the voluntary declaration
that the parent child relationship continue;
notice by the biological father of the child that he does not
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oppose preservation of the relationship between the man who
signed the voluntary declaration and the child;
the benefit or detriment to the child in establishing the
biological parentage of the child;
whether the conduct of the man who signed the voluntary
declaration has impaired the ability to ascertain the identity
of, or get support from, the biological father; and
additional factors deemed by the court to be relevant to its
determination of the best interest of the child. (Fam. Code
Secs. 7575 and 7648.)
Existing law provides that if a court grants a motion to set
aside or vacate a paternity judgment, the court shall vacate any
order for child support and arrearages issued on the basis of
that previous judgment of paternity. The previously established
father has no right of reimbursement for any amount of support
paid prior to the granting of the motion to set aside or vacate.
(Fam. Code Sec. 7648.4.)
Existing law provides that the child of a wife cohabitating with
her husband, who is not impotent or sterile, is conclusively
presumed to be a child of the marriage. (Fam. Code Sec. 7540.)
This bill would allow a mother, the man who signed the voluntary
declaration of paternity, the child, or their legal
representatives, to file a motion to set aside a declaration of
paternity based on fraud, duress, or a material mistake of fact
within a two-year period beginning on the date the party
bringing the challenge knew or should have known the man who
signed the declaration was not the biological father.
This bill would not permit a party to bring a motion to set
aside or vacate a judgment of paternity if the party knew or
should have known the previously established father was not the
biological father at the time of the original judgment.
This bill would change and prioritize certain factors that a
court must take into consideration when deciding whether or not
to set aside or vacate a voluntary declaration of paternity or
judgment of paternity in the best interests of the child.
Specifically, this bill would require the court to consider the
following factors, giving greatest weight to the first factor:
the nature, duration, and quality of the relationship between
the previously established father and the child, including the
duration and frequency of any time periods during which the
child and previously established father resided in the same
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household or enjoyed a parent-child relationship, and any
request of the previously established father that the
parent-child relationship continue;
the age of the child;
the length of time since the entry of the judgment
establishing paternity.
notice by another person who would otherwise have a claim of
parentage of the child that he does not oppose preservation of
the relationship between the previously established father and
child;
the benefit or detriment to the child in establishing
parentage in a person other than the previously established
father; and
additional factors deemed by the court to be relevant to the
determination of the child's best interest.
This bill would delete a factor the court is currently required
to consider when determining the best interest of the child.
Specifically, it would delete whether the conduct of the
previously established father has impaired the ability to
ascertain the identity of, or ascertain the biological father.
COMMENT
1.Stated need for the bill
According to the author, this bill will conform California law
to federal law by allowing a voluntary declaration of paternity
to be challenged on the grounds of fraud, duress, or material
mistake of fact, placing the burden of fact on the challenger.
The author notes that at least 18 other states have statutes
that permit a party to contest a declaration of paternity at any
time for fraud, duress, or mistake of fact. In addition, the
author states that this change is necessary to fully utilize
modern DNA testing technology in order to ascertain the true
biological parentage of a child. The author writes:
In a growing era of medical science it is more important for
a child to know his or her true DNA parents and to be
supported by the true biological father. Prohibiting the
introduction of DNA evidence after a reasonable period of
discovery only creates enormous emotional anger and financial
pressure on an innocent victim. This bill creates a balance
and simply conforms to federal law �in providing] the limited
ability to challenge a voluntary declaration �of paternity].
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2.This bill would arguably undermine a compelling state interest
in establishing paternity for all children
Current law creates a presumption that a man who signs a
voluntary declaration of paternity is the legal father of a
child. This presumption becomes conclusive if not rescinded
within 60-days or challenged within two years of the date of
child's birth. Currently a party may petition to set aside or
vacate a voluntary declaration of paternity by requesting
genetic tests or based upon the results of prior genetic tests,
during that two-year period.
This bill would allow a party to move to set aside or vacate a
voluntary declaration or judgment of paternity and request
genetic tests based on fraud, duress, or material mistake of
fact within a two-year period beginning on the date the party
bringing the challenge knew or should have known the man who
signed the declaration was not the biological father, regardless
of the child's date of birth. Because a father can presumably
learn at any point during a child's life that he is not the
biological father, this bill would create a serious degree of
uncertainty regarding the finality of paternity judgments.
The state has a compelling interest in determining parentage for
all children, so that they may receive the support they need.
California and its case law have a long-standing public policy
in favor of establishing paternity to further the best interest
of the child involved. In opposition to this bill, the
Association of Family Conciliation Courts (AFCC) argues that
this bill "represents a continuing attempt to resolve what is
basically a financial issue (a parent's obligation for child
support) by giving that parent's needs and desires precedence
over the child's needs. This deliberately shifts the focus of
the law from the child to the father or obligated parent."
The Executive Committee of the Family Law Section of the State
Bar (FLEXCOM) shares this concern regarding the lack of
certainty this bill would create, and how this would affect
children. In opposition to this bill, FLEXCOM writes:
The two years from the date the party "knew or should have
known" language would effectively establish an open-ended
statute of limitations to file this motion, causing a lack of
finality in paternity judgments involving a Voluntary
Declaration of Paternity. This lack of finality in paternity
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judgments would result in a constant threat of litigation for
one parent and, more importantly, could cause damage to a
child whose "parent" files a motion many years after the
child's birth, claiming he is not the biological father and
no longer wants to be declared the child's legal father.
Even though the primary factor in determining if the court
should set aside the voluntary declaration is the "nature,
duration and quality of the relationship between the man who
signed the voluntary declaration and the child, FLEXCOM does
not think litigation over the paternity of a child, who has
believed the "challenged father" is his or her parent for a
prolonged period of time, is in the best interest of the
child - even if the declaration is ultimately not set aside.
The National Center for Lesbian Rights (NCLR), in support of
this bill, argues that this bill will help create certainty for
paternity in families with same sex parents. NCLR writes:
Many LGBT non-biological parents continue to struggle to be
recognized as legal parents of their children. Provisions
allowing paternity to be set aside when it is discovered that
a man is not biologically related to his child have been used
against LGBT non-biological parents to challenge their legal
rights to their children.
California law recognizes that courts can find that a
non-biological parent is a legal parent. However, the
current language of the provisions addressing when a previous
parentage order can be set aside assumes that biology is the
only basis for parentage. When a non-biological parent has
raised a child as his or her own ? it would be inappropriate
and harmful to the child to allow a judgment of parentage be
set aside later merely because they are not biologically
related.
The author and NCLR argue that this bill would address this
problem, and add an element of finality to certain paternity
judgments, by providing that a judgment may not be set aside if
when at the time of the initial parentage action it was known
that the parent was not biologically related to the child.
In response to this provision of the bill, (FLEXCOM) expresses
concern "about the resulting amount of litigation, as parties
attempt to ascertain whether the 'challenging party' had the
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requisite knowledge about the 'father's' paternity."
Under existing law, parties have two years to challenge
presumptions of paternity before the presumption becomes
conclusive. While this particular provision of the bill
attempts to create certainty for families who initially knew
that one parent was not biologically connected to the child, the
bill as a whole would create uncertainty about the finality of
paternity orders. An open-ended amount of time in which
paternity challenges may be brought creates uncertainty for all
families and invites ongoing litigation. This does not strike a
balance in favor of a child's best interests.
The Committee may wish to amend the bill to delete the
problematic provisions which introduce significant uncertainty
into children's lives by creating an indefinite time period in
which a previously established father may challenge a voluntary
declaration of paternity. Such an amendment would maintain the
provision prohibiting a party from bringing a challenge if at
the time of the initial action establishing paternity the party
knew or should have known that the previously established father
was not the biological father of the child. Such an amendment
would also maintain the provision which prohibits a party from
bringing a challenge if the child was conceived through assisted
reproduction.
DO THE PROVISIONS OF THIS BILL WHICH CREATE AN INDEFINITE TIME
PERIOD IN WHICH A PREVIOUSLY ESTABLISHED FATHER MAY CHALLENGE A
VOLUNTARY DECLARATION OF PATERNITY CREATE SIGNIFICANT
UNCERTAINTY IN A CHILD'S LIFE? IF SO, SHOULD THOSE PROVISIONS
BE REMOVED?
3.Existing requirement to set aside or vacate child support
arrears when a voluntary declaration of paternity is set aside
or vacated
Existing law provides that when a paternity order is set aside,
the court shall vacate any order for child support and
arrearages. The previously established father has no right of
reimbursement for any amount of support paid prior to the
granting of the motion to set aside or vacate the judgment or
declaration of paternity. Under existing law a party must
challenge paternity within two years from the child's birth or
the initial parentage action, so a maximum of two years of
arrearages will be set aside. Because this bill does not tie a
petitioner's ability to challenge a declaration of paternity to
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the date of birth of a child, there is no limit on the amount of
unpaid child support that will be set aside if a previously
established father successfully challenges paternity. This is
an unintended consequence of this bill, which could leave
children without support.
This bill would allow a petitioner to challenge a declaration of
paternity, as specified, for up to two years after the party
knew or should have known that the previously established father
was not the biological father. In a situation where a
previously established father who is behind in child support
payments discovers that he is not biologically connected to a
child who is ten years old, a motion to vacate a declaration of
paternity could result in many years of arrearages being set
aside. This may leave a child without a significant amount of
support while creating a windfall to the previously established
parent who, despite no knowledge that the child was not his
biological child, has not paid child support.
Support : American Retirees Association; California Judges
Association; Equality California; National Center for Lesbian
Rights
Opposition : Association of Family Conciliation Courts (AFCC);
Executive Committee of the Family Law Section of the State Bar
(FLEXCOM)
HISTORY
Source : Author
Related Pending Legislation : None Known
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Prior Legislation :
AB 380 (Wright, Chapter 653, Statutes of 1999) authorized a
court to allow set aside a support order on the grounds of
fraud, among other changes to child and family support law.
AB 2240 (Wright, 2002) would have allowed the court to vacate a
paternity judgment and would allow a previously determined
father to bring a civil action for recovery of damages against
the determined genetic father. This bill was vetoed.
SB 1030 (Ashburn, 2003) would have allowed judgments of
paternity to be set aside based on genetic testing, among other
changes to provisions in paternity cases. This bill failed
passage in the Assembly Judiciary Committee.
AB 252 (Jackson, Chapter 849, Statutes of 2004) created a
provision in the law by which a party can move to set aside or
vacate a voluntary declaration or judgment of paternity based on
genetic testing. The bill gives the court discretion to deny the
motion based on the best interests of the child even if the
previously established father is proved not to be the biological
father, and sets out factors for the court to take into
consideration when determining the best interest of the child.
SB 1333 (Ashburn, Chapter 58, Statutes of 2008) authorized the
reconsideration of the denial of a motion to set aside or vacate
a judgment of paternity under certain limited circumstances.
SB 375 (Wright, 2011) would have allowed a presumed father to
move to set aside a declaration of judgment of paternity within
two years of the discovery of facts that lead him to believe he
is not the biological father of the child. This bill was set for
hearing in the Senate Judiciary Committee. The hearing was
canceled at the request of author.
SB 377 (Wright, 2011) would have invalidated a voluntary
declaration of paternity that is signed by a minor if it is not
also signed by the parent or guardian of the minor parent. This
bill was set for hearing in the Senate Judiciary Committee.
The hearing was canceled at the request of author.
AB 1349 (Hill, Chapter 185, Statutes of 2011) made a voluntary
declaration of paternity invalid if signed by a sperm donor, or
if the child at issue already had a presumed parent, and
required to court to consider specific factors in determining
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whether or not to set aside a declaration in the best interests
of the child.
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