Bill Text: CA SB1260 | 2011-2012 | Regular Session | Amended
Bill Title: Paternity.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-05-08 - Set, first hearing. Held in committee without recommendation. [SB1260 Detail]
Download: California-2011-SB1260-Amended.html
BILL NUMBER: SB 1260 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 25, 2012
INTRODUCED BY Senator Wright
FEBRUARY 23, 2012
An act to add amend Sections
7575.5 7575, 7646, and 7646.5
to 7648 of the Family Code, relating to
paternity.
LEGISLATIVE COUNSEL'S DIGEST
SB 1260, as amended, Wright. Paternity.
Existing
(1) Existing law establishes a
conclusive presumption that a man is the natural father of a child if
he and the natural mother of the child are married and the child is
born during the marriage, or if he signs a voluntary declaration of
paternity, as provided. Under existing law, these presumptions of
paternity may be rebutted by genetic evidence that another man is the
biological father of the child. Existing law requires that a motion
for genetic tests be filed not later than 2 years after the birth of
the child, as specified.
Existing law provides that, except as to cases in which paternity
is presumed under the conclusive presumption described above,
specified persons, including a man alleged or alleging himself to be
the father, may bring an action to determine the existence of the
father and child relationship. Existing law requires that a motion to
set aside a judgment to establish paternity must be brought within a
2- year 2-year period, as specified.
Under existing law, if the results of genetic tests
performed, as specified, indicate that the previously established
father is not the biological father of the child, the court may,
nevertheless, deny the motion to set aside or vacate a
paternity judgment, based on the best interest of the child.
This bill would, notwithstanding these provisions, grant
courts the discretion to set aside a paternity judgment in the
interest of justice, based on the totality of the circumstances and
the best interests of the child, except as specified.
provisions, permit the mother of the child, the man who signed the
voluntary declaration of paternity, the child, or the legal
representatives of any of these persons to bring a motion to set
aside a voluntary declaration of paternity based on fraud, duress, or
a material mistake of fact within 2 years of the date on which the
party bringing the challenge knew or should have known that the man
who signed the voluntary declaration was not the biological father.
This bill would also prohibit a party, as specified, from bringing a
motion to set aside or vacate a judgment establishing 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.
(2) Existing law provides certain factors that a court is required
to consider in determining the best interest of the child in actions
to set aside a voluntary declaration of paternity or vacate a
judgment establishing paternity. These factors include, among others,
the nature, duration and quality of any relationship between the man
who signed the voluntary declaration of paternity or the previously
established father and the child, and any request of the man who
signed the voluntary declaration of paternity or the previously
established father that the parent-child relationship continue.
This bill would require the court to give greater weight to the
factors specified above. The bill would also delete certain factors
to be considered by the court, including whether the conduct of the
previously established father impaired the ability to ascertain the
identity of, or get support from, the biological father. The bill
would revise other factors the court is required to consider,
including the benefit or detriment to the child in establishing
parentage in a person other than the previously established father.
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 7575 of the Family
Code is amended to read:
7575. (a) Either parent may rescind the voluntary declaration of
paternity by filing a rescission form with the Department of Child
Support Services within 60 days of the date of execution of the
declaration by the attesting father or attesting mother, whichever
signature is later, unless a court order for custody, visitation, or
child support has been entered in an action in which the signatory
seeking to rescind was a party. The Department of Child Support
Services shall develop a form to be used by parents to rescind the
declaration of paternity and instruction on how to complete and file
the rescission with the Department of Child Support Services. The
form shall include a declaration under penalty of perjury completed
by the person filing the rescission form that certifies that a copy
of the rescission form was sent by any form of mail requiring a
return receipt to the other person who signed the voluntary
declaration of paternity. A copy of the return receipt shall be
attached to the rescission form when filed with the Department of
Child Support Services. The form and instructions shall be written in
simple, easy to understand language and shall be made available at
the local family support office and the office of local registrar of
births and deaths. The department shall, upon written request,
provide to a court or commissioner a copy of any rescission form
filed with the department that is relevant to proceedings before the
court or commissioner.
(b) (1) Notwithstanding Section 7573 or any other law, a motion to
set aside a voluntary declaration of paternity based on fraud,
duress, or a material mistake of fact may be brought by the mother of
the child, the man who signed the voluntary declaration of
paternity, the child, or the legal representative of any of these
persons within a two-year period to commence on the date the party
bringing the challenge knew or should have known that the man who
signed the voluntary declaration was not the biological father.
(b) (1) Notwithstanding Section 7573, if
(2) If the court finds that the
conclusions of all of the experts based upon the results of the
genetic tests performed pursuant to Chapter 2 (commencing with
Section 7550) are that the man who signed the voluntary declaration
is not the biological father of the child, the court may
set aside the voluntary declaration of paternity unless the
court determines that denial of the action to set aside the voluntary
declaration of paternity if the court finds that it
is in the best interest of the child, after consideration of
all of the following factors and giving
greatest weight to the factors described in subparagraph (A) :
(A) The nature, duration, and quality of the relationship between
the man who signed the voluntary declaration and the child, including
the duration and frequency of any time periods during which the
child and the man who signed the voluntary declaration resided in the
same household or enjoyed a parent-child relationship, and any
request of the man who signed the voluntary declaration that the
parent-child relationship continue.
(A)
(B) The age of the child.
(B)
(C) The length of time since the execution of the
voluntary declaration of paternity by the man who signed the
voluntary declaration.
(C) The nature, duration, and quality of any relationship between
the man who signed the voluntary declaration and the child, including
the duration and frequency of any time periods during which the
child and the man who signed the voluntary declaration resided in the
same household or enjoyed a parent-child relationship.
(D) The request of the man who signed the voluntary declaration
that the parent-child relationship continue.
(E)
(D) Notice by the biological father
another person who would otherwise have a claim to parentage
of the child that he does not oppose preservation of the
relationship between the man who signed the voluntary declaration and
the child.
(F)
(E) The benefit or detriment to the child in
establishing the biological parentage of the child
parentage in a person other than the man who signed the
voluntary declaration .
(G) 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.
(H)
(F) Additional factors deemed by the court to be
relevant to its determination of the best interest of the child.
(2) If
(3) Whether the court grants
or denies the action, the court shall state on the record the
basis for the denial of the action decision
and any supporting facts.
(3) (A) The notice of motion for genetic tests under this section
may be filed not later than two years from the date of the child's
birth by a local child support agency, the mother, the man who signed
the voluntary declaration as the child's father, or in an action to
determine the existence or nonexistence of the father and child
relationship pursuant to Section 7630 or in any action to establish
an order for child custody, visitation, or child support based upon
the voluntary declaration of paternity.
(B)
(4) The local child support agency's authority under
this subdivision is limited to those circumstances where there is a
conflict between a voluntary acknowledgment of paternity and a
judgment of paternity or a conflict between two or more voluntary
acknowledgments of paternity.
(4)
(5) The notice of motion for genetic tests pursuant to
this section shall be supported by a declaration under oath submitted
by the moving party stating the factual basis for putting the issue
of paternity before the court.
(c) (1) Nothing in this chapter shall be construed to prejudice or
bar the rights of either parent to file an action or motion to set
aside the voluntary declaration of paternity on any of the grounds
described in, and within the time limits specified in, Section 473 of
the Code of Civil Procedure. If the action or motion to set aside a
judgment is required to be filed within a specified time period under
Section 473 of the Code of Civil Procedure, the period within which
the action or motion to set aside the voluntary declaration of
paternity must be filed shall commence on the date that the court
makes an initial order for custody, visitation, or child support
based upon a voluntary declaration of paternity.
(2) The parent person or local child
support agency seeking to set aside the voluntary declaration of
paternity shall have the burden of proof.
(3) Any order for custody, visitation, or child support shall
remain in effect until the court determines that the voluntary
declaration of paternity should be set aside, subject to the court's
power to modify the orders as otherwise provided by law.
(4) Nothing in this section is intended to restrict a court from
acting as a court of equity.
(5) If the voluntary declaration of paternity is set aside
pursuant to paragraph (1), the court shall order that the mother,
child, and alleged father submit to genetic tests pursuant to Chapter
2 (commencing with Section 7550). If the court finds that the
conclusions of all the experts, as disclosed by the evidence
based upon the genetic tests, are that the person who executed the
voluntary declaration of paternity is not the
father of the child should be set aside pursuant to
subdivision (b) , the question of paternity shall be resolved
accordingly. If the person who executed the declaration as the father
of the child is not excluded as a possible father, the question of
paternity shall be resolved as otherwise provided by law. If the
person who executed the declaration of paternity is ultimately
determined to be the father of the child, any child support that
accrued under an order based upon the voluntary declaration of
paternity shall remain due and owing.
(6) The Judicial Council shall develop the forms and procedures
necessary to effectuate this subdivision.
SEC. 2. Section 7646 of the Family Code
is amended to read:
7646. (a) Notwithstanding any other provision of
law, a motion to set aside or vacate a judgment
establishing paternity may be set aside or vacated upon a
motion brought by the previously established
mother of a child, the previously established father of a child, the
child, or the legal representative of any of these persons if genetic
testing indicates that the previously established father of a child
is not the biological father of the child. The motion shall
be brought within one of the following time periods:
(1) This section shall not apply if the party bringing the
challenge 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.
(1) Within
(2) The motion shall be brought within
a two-year period commencing with the date on which the
previously established father knew or should have known of a judgment
that established him as the father of the child or commencing with
the date the previously established father knew or should have known
of the existence of an action to adjudicate the issue of paternity,
whichever is first , except as provided in paragraph (2) or
(3) of this subdivision .
(2) Within a two-year period commencing with the date of the child'
s birth if paternity was established by a voluntary declaration of
paternity. Nothing in this paragraph shall bar any rights under
subdivision (c) of Section 7575.
(3) In the case of any previously established father who is the
legal father as a result of a default judgment as of the effective
date of this section, within a two-year period from January 1, 2005,
to December 31, 2006, inclusive.
(3) The court may grant the motion to set aside or vacate the
judgment establishing paternity pursuant to Section 7648.
(b) Subdivision (a) does not apply if the child was conceived
through assisted reproduction or is presumed to be a child of
a marriage pursuant to Section 7540.
(c) Reconsideration of a motion brought under paragraph (3) of
subdivision (a) may be requested and granted if the following
requirements are met:
(1) The motion was filed with the court between September 24,
2006, and December 31, 2006, inclusive.
(2) The motion was denied solely on the basis that it was
untimely.
(3) The request for reconsideration of the motion is filed on or
before December 31, 2009.
SEC. 3. Section 7648 of the Family Code
is amended to read:
7648. If the court finds that the conclusions of all of the
experts, based upon the results of genetic tests performed pursuant
to Chapter 2 (commencing with Section 7550) of Part 2, indicate that
the previously established father is not the biological father of the
child, the court may , nevertheless, deny the motion if it
determines that denial of the motion is in the best interest of the
child, set aside the judgment of paternity if the
court finds that it would be in the best interest of the child
after consideration of the following factors , giving
the greatest weight to the factors in subdivision (a) :
(a) 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
the previously established father resided in the same household or
enjoyed a parent-child relationship, and any request of the
previously established father that the parent-child relationship
continue.
(a)
(b) The age of the child.
(b)
(c) The length of time since the entry of the judgment
establishing paternity.
(c) The nature, duration, and quality of any relationship between
the previously established father and the child, including the
duration and frequency of any time periods during which the child and
the previously established father resided in the same household or
enjoyed a parent-child relationship.
(d) The request of the previously established father that the
parent-child relationship continue.
(e)
(d) Notice by the biological father
another person who would otherwise have a claim to parentage
of the child that he does not oppose preservation of the
relationship between the previously established father and the child.
(f)
(e) The benefit or detriment to the child in
establishing the biological parentage of the child
parentage in a person other than the previously established
father .
(g) Whether the conduct of the previously established father has
impaired the ability to ascertain the identity of, or get support
from, the biological father.
(h)
(f) Additional factors deemed by the court to be
relevant to its determination of the best interest of the child.
SECTION 1. Section 7575.5 is added to the
Family Code, to read:
7575.5. (a) Notwithstanding Section 7575, and except as provided
in subdivision (b), a court shall have the discretion to set aside a
paternity judgment in the interest of justice, based on the totality
of the circumstances and the best interests of the child.
(b) This section shall not apply to a donor of semen who agrees in
a writing, pursuant to subdivision (b) of Section 7613, to be
treated in law as if he were the natural father of a child conceived
by artificial insemination or in vitro fertilization, and who is
determined by genetic testing to be the natural father.
SEC. 2. Section 7646.5 is added to the Family
Code, to read:
7646.5. (a) Notwithstanding Section 7646, and except as provided
in subdivision (b), a court shall have the discretion to set aside a
paternity judgment in the interest of justice, based on the totality
of the circumstances and the best interests of the child.
(b) This section shall not apply to a donor of semen who agrees in
a writing, pursuant to subdivision (b) of Section 7613, to be
treated in law as if he were the natural father of a child conceived
by artificial insemination or in vitro fertilization, and who is
determined by genetic testing to be the natural father.
