BILL ANALYSIS �
SB 1476
Page 1
SENATE THIRD READING
SB 1476 (Leno)
As Amended July 2, 2012
Majority vote
SENATE VOTE :24-13
JUDICIARY 7-2 APPROPRIATIONS 11-5
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|Ayes:|Feuer, Atkins, Dickinson, |Ayes:|Fuentes, Blumenfield, |
| |Huber, Monning, | |Bradford, Campos, Davis, |
| |Wieckowski, | |Gatto, Hall, Hill, Lara, |
| |Bonnie Lowenthal | |Mitchell, Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Gorell |Nays:|Harkey, Donnelly, |
| | | |Nielsen, Norby, 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 should be
construed to preclude a finding that a child has a
parent-child relationship with more than two parents.
2)Allows a court to find that a presumption of paternity is not
necessarily rebutted by a judgment establishing paternity by
another person.
3)Provides that where two or more claims or presumptions of
parentage have been established, a court may find that a child
has more than two natural or adoptive parents if it is
required to serve the best interests of the child. Requires
the court, in determining the best interest of the child, to
consider the nature, duration, and quality of the presumed or
claimed parents' relationships with the child, and the benefit
or detriment to the child of continuing those relationships.
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,
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including, but not limited to stability for the child. States
that this may mean that not all parents share legal or
physical custody of the child.
5)Allows the court, in any case in which a child has more than
two legal parents, to deviate from the child support
guideline, dividing the child support obligations among the
parents based on income and the amount of time spent with the
child by each parent, according to the principles set forth in
existing law, adjusted to permit recognition of two parents.
Provides that this shall not be construed to require
reprogramming of the California Child Support Automation
System, a change in the guideline, or a revision in any
Department of Child Support Services' (DCSS) regulation,
policy, procedure, form or training material.
EXISTING LAW :
1)Establishes the California Uniform Parentage Act (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)Provides that the child of a wife who is living with her
husband, who is not sterile, is conclusively presumed to be a
child of the marriage, except as provided.
3)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.
4)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 is rebutted by a judgment
establishing paternity of the child by another man.
5)Provides that paternity may be established by voluntary
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declaration for unmarried parents, or through a civil action
brought by any interested party, as specified.
6)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.
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)Provides that custody of a child should be granted in the
following order of preference: to parents jointly; to either
parent taking into consideration which parent is more likely
to allow the child frequent and continuing contact with the
noncustodial parent; to the person in whose home the child has
been living in a wholesome and stable environment. 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.
DCSS, however, contends that this legislation will require
$6.4 million for the one-time costs associated with
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reprogramming the child support automation system, updating
training materials, child support regulations, data reports,
policies, and procedures which will all take approximately
18,000 staff hours. The bill, however, explicitly states that
changes need not be made to the support automation system, the
uniform child support guidelines or any other DCSS forms or
materials. In addition, it is likely that local child support
agencies are already dealing with complex family structures
and multiple parents in their efforts to recoup California
Work Opportunity and Responsibility to Kids (CalWORKs)
payments and foster care payments. Therefore, any costs to
DCSS should be minor and absorbable within existing resources.
2)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.)
Because of the presumptions of paternity available under law, it
is possible in 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 doing so is required to protect the
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best interests of the child.
In re M.C. clarified the importance of greater flexibility for
courts in determining the number of legal parents permitted. 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,
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 other 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. In
2007 a Pennsylvania court upheld an award of partial custody to
a biological mother's same-sex partner, with partial custody to
the biological mother and sperm donor, who had been involved as
a parent since infancy. The court held that all three had an
obligation to support the child. (Jacob v. Shultz-Jacob 923
A.2d 473 (Pa. Super. 2007).) A Maine court found that a child
may have a non-biological, de facto parent with parental rights
and responsibilities in addition to two biological parents.
(C.E.W. v. D.E.W. (Me. 2004) 845 A.2d 1146, 1149-51.) Delaware
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recognizes three types of legal parents under statute: a
natural parent, an adoptive parent, and a de facto parent.
(Del. Title 13, Sec. 8-201.)
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0004701