Bill Text: CA SB377 | 2011-2012 | Regular Session | Amended
Bill Title: Paternity.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-31 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB377 Detail]
Download: California-2011-SB377-Amended.html
BILL NUMBER: SB 377 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 30, 2011
INTRODUCED BY Senator Wright
FEBRUARY 15, 2011
An act to amend Sections 7572, 7575, 7572
and 7577 of, and to add Section 4015 to,
of the Family Code, relating to paternity.
LEGISLATIVE COUNSEL'S DIGEST
SB 377, as amended, Wright. Paternity.
Existing law establishes a presumption that a man is the natural
father of a child if he signs a voluntary declaration of paternity.
Under existing law, this presumption 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 to rebut
this presumption be filed not later than 2 years after the birth of
the child.
This bill would authorize a presumed father to file a motion for
genetic tests within a reasonable time after he becomes aware of
facts that lead him to reasonably believe that he may not be the
biological father of the child.
Existing law requires that the Department of Child Support
Services provide certain oral and written information to parents
along with the voluntary declaration of paternity form. Under
existing law, a voluntary declaration of paternity that is signed by
a minor parent shall not establish paternity until 60 days after both
parents have reached 18 years of age or are emancipated.
This bill would additionally invalidate a voluntary declaration of
paternity that is signed by a minor parent if it is not also signed
by the parent or guardian of the minor parent. The bill would also
require the department to provide the oral and written information
relating to the voluntary declaration of paternity to the parent or
guardian of the minor parent.
Under existing law, a presumed father may be ordered to pay child
support, the amount of which is determined pursuant to a formula that
takes into account each party's income and time spent parenting the
child. Existing law provides that a child support order may be
retroactive to the date of filing the petition, complaint, or other
initial pleading.
This bill would provide that if a presumed father has been paying
child support for the child, and in an action to challenge his
paternity it is established that another man is the father of the
child, he may bring an motion to recover from the now-established
father all or a portion of the child support he has paid since the
initiation of the proceeding, as specified. The bill would authorize
the recovery of child support by the presumed father only if the
court determines that the now-established father knew or had reason
to know that he was or might be the biological father.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Genetic testing, using DNA evidence, is recognized as
scientifically valid by the courts of this country.
(b) In the year 2000, the State of California recognized the
validity of DNA testing and created a procedure for an individual
convicted of certain crimes to petition a court to reopen his or her
case in order to reevaluate DNA evidence.
(c) A man who is adjudicated to be the father of a child by a
court in a paternity action when he is not actually the biological
father of the child may be financially liable for up to 18 years of
child support.
(d) The American Association of Blood Banks reported that out of a
total of more than 280,000 cases evaluated in 1999, almost 30
percent of the genetic samples excluded the tested individual as the
biological father.
(e) Thirty-seven states have more liberal and flexible statutes
than California and allow for paternity to be reevaluated using DNA
evidence.
(f) Data from the Department of Child Support Services shows that
judgments in more than 87 percent of cases challenging paternity
during a two-year period were established by default.
(g) Respect for the judicial system is greatly diminished when the
laws are inconsistent with regard to the use of scientifically valid
DNA testing and do not permit the correction of an injustice in a
paternity action, but do allow it in a criminal proceeding.
SEC. 2. Section 4015 is added to the Family
Code, to read:
4015. (a) If a person presumed to be the father of a child
pursuant to Sections 7540, 7571, 7610, or 7611 has been paying child
support for the child, and in an action to challenge his paternity
the court determines that another man is the father of the child, the
presumed father may bring a motion, as part of the action to
challenge his paternity, to recover from the now-established father
all or a portion of the child support the presumed father has paid
since the filing of the petition, complaint, or other initial
pleading.
(b) A presumed father may recover child support payments from the
now-established father pursuant to subdivision (a) only if the court
determines that the now-established father knew or had reason to know
that he was or might be the biological father of the child.
(c) The amount of the child support reimbursement authorized in
subdivision (a) shall be limited to the amount that the
now-established father would have been ordered to pay if he had
previously been determined to be the father, as determined by the
court.
SEC. 3. SEC. 2. Section 7572 of the
Family Code is amended to read:
7572. (a) The Department of Child Support Services, in
consultation with the State Department of Health Care Services, the
California Association of Hospitals and Health Systems, and other
affected health provider organizations, shall work cooperatively to
develop written materials to assist providers and parents in
complying with this chapter. This written material shall be updated
periodically by the Department of Child Support Services to reflect
changes in law, procedures, or public need.
(b) The written materials for parents which shall be attached to
the form specified in Section 7574 and provided to unmarried parents,
or if a parent is a minor, to the parents and to the parent or
guardian of the minor parent, shall contain the following
information:
(1) A signed voluntary declaration of paternity that is filed with
the Department of Child Support Services legally establishes
paternity.
(2) The legal rights and obligations of both parents and the child
that result from the establishment of paternity.
(3) An alleged father's constitutional rights to have the issue of
paternity decided by a court; to notice of any hearing on the issue
of paternity; to have an opportunity to present his case to the
court, including his right to present and cross-examine witnesses; to
have an attorney represent him; and to have an attorney appointed to
represent him if he cannot afford one in a paternity action filed by
a local child support agency.
(4) That by signing the voluntary declaration of paternity, the
father is voluntarily waiving his constitutional rights.
(c) Parents shall also be given oral notice of the rights and
responsibilities specified in subdivision (b), and if a parent is a
minor, oral notice shall additionally be provided to the parent or
guardian of the minor parent. Oral notice may be accomplished through
the use of audio or video recorded programs developed by the
Department of Child Support Services to the extent permitted by
federal law.
(d) The Department of Child Support Services shall, free of
charge, make available to hospitals, clinics, and other places of
birth any and all informational and training materials for the
program under this chapter, as well as the paternity declaration
form. The Department of Child Support Services shall make training
available to every participating hospital, clinic, local registrar of
births and deaths, and other place of birth no later than June 30,
1999.
(e) The Department of Child Support Services may adopt
regulations, including emergency regulations, necessary to implement
this chapter.
SEC. 4. 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, 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 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 is in
the best interest of the child, after consideration of all of the
following factors:
(A) The age of the child.
(B) 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) Notice by the biological father of the child that he does not
oppose preservation of the relationship between the man who signed
the voluntary declaration and the child.
(F) The benefit or detriment to the child in establishing the
biological parentage of the child.
(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) Additional factors deemed by the court to be relevant to its
determination of the best interest of the child.
(2) If the court denies the action, the court shall state on the
record the basis for the denial of the action 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) Notwithstanding subparagraph (A) or Section 7577, a motion for
genetic tests may be filed by the man who signed the voluntary
declaration as the child's father within a reasonable time after he
becomes aware of facts that lead him to reasonably believe that he is
not the biological father of the child.
(C) 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) 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 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,
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. 5. SEC. 3. Section 7577 of the
Family Code is amended to read:
7577. (a) Notwithstanding Section 7573, a voluntary declaration
of paternity that is signed by a minor parent or minor parents is
invalid unless it is also signed by a parent or guardian of the minor
parent or parents.
(b) A voluntary declaration of paternity that is signed by a minor
parent or minor parents as well as by his or her parent or guardian
shall not establish paternity until 60 days after both parents have
reached 18 years of age or are emancipated, whichever first occurs.
(c) A parent who signs a voluntary declaration of paternity when
he or she is a minor may rescind the voluntary declaration of
paternity at any time up to 60 days after the parent reaches 18 years
of age or becomes emancipated whichever first occurs.
(d) A voluntary declaration of paternity signed by a minor creates
a rebuttable presumption of paternity until the date that it
establishes paternity as specified in subdivision (a).
(e) A voluntary declaration of paternity signed by a minor shall
be admissible as evidence in any civil action to establish paternity
of the minor named in the voluntary declaration.
(f) A voluntary declaration of paternity that is signed by a minor
shall not be admissible as evidence in a criminal prosecution for
violation of Section 261.5 of the Penal Code.
