Waldlaw Blog

Friday, August 05, 2011

Protection of Parent-Child Relationships Act Signed into Law!

The Protection of Parent-Child Relationships Act (AB 1349) was signed into law this morning by California Governor Jerry Brown.  Having helped write this bill -- and having worked for two years to get it passed -- I couldn't be more pleased.

WARNING -- the following explanation is legally complex.  Take a deep breath before reading.  And let me know if you don't understand!

This Act amends California parentage law in two important ways:

(1) When an unmarried woman gives birth to a child, she has the opportunity to name the child's father and he can be listed on the child's birth certificate if -- and only if -- he and she sign something called a Voluntary Declaration of Paternity (VDP).  The form must be witnessed and filed with the state Department of Social Services.  Once that process is completed, the man is the legal father for all purposes, and the VDP is treated the same as a Judgment of paternity rendered by a court.  But there's a catch.  Before a court will adjudicate paternity, they are required to make certain that every person with a claim to parentage of the child has received notice and had an opportunity to be heard.  This is called due process.  But no notice is required in order to file a VDP.  So a mother can have the biological father sign a VDP even though another person has already assumed a parental role and taken full responsibility for the child, without any notice to the other person who has been acting as a parent.

Prior to the passage of AB 1349, there was no way to set aside a VDP unless it later turned out that the declared father was not actually the biological father.  So a man or woman who raised a child, along with the child's biological mother, could be removed from that child's life at any point by the mother finding the biological father, getting him to sign a VDP with her, and filing it with the Department of Social Services.  The non-biological parent was left with no recourse, and no standing to even seek continued visitation with the child.

California is a state that has long recognized that the social relationship of parent and child is often more important than the biological relationship of parent and child.  Where the person who has raised a child is not the genetic parent, the courts often will protect the established parent-child relationship, even in the face of a challenge by the genetic parents.   The VDP process, as it existed until today, created a serious loophole in this principle.

Now, with the Protection of Parent-Child Relationships Act having been signed into law, where a child has a biological father who has signed a VDP, but has been raised by someone else who has acted in every way as a parent, the courts will have the discretion to dig into the facts and figure out which person is best suited to be in the legal role of "parent."  The courts will no longer automatically have to default to genetics, if this result would not be in a child's best interest.

(2)  California law distinguishes between fathers and sperm donors.  A sperm donor is a man who provides his sperm to a physician or sperm bank, for purposes of insemination or in vitro fertilization of a woman other than the donor's wife.  A father is a man who impregnates a woman in any other way (i.e. without physician involvement -- whether through assisted insemination or through sex). 

In our modern world, there are many men providing their sperm to physicians or sperm banks for purposes of impregnating a woman other than the man's wife, who in fact intend to be fathers to the children whose conception results from the process.  Some examples:  married couples who find themselves unable to sustain a pregnancy on their own often provide both eggs and sperm to a physician, which eggs and sperm are used to create embryos through an in vitro fertilization process.  The embryos are then implanted into the womb of a gestational carrier (surrogate).  Under this scenario, the husband has provided his sperm to a physician for purposes of in vitro fertilization of a woman other than his wife, but with the full intention of being a father of any resulting child.  Likewise, any time an unmarried heterosexual couple needs medical assistance to conceive, the man will be providing his sperm to a physician.  Paternity is not determined by the marital status of the parents in sexual reproduction; it also should not be determined by the marital status of the parents in medically assisted reproduction.

The Protection of Parent-Child Relationships Act amends our Family Code to allow a man who provides sperm to a physician or sperm bank to still be a father, even though he is not married to the woman who will be impregnated with the sperm, as long as he and the recipient sign an agreement prior to impregnation that clearly states their mutual intention that he be a father.

California family law is complicated, particularly when it comes to figuring out who "parents" are in our modern world.  AB 1349 will go a long way to assuring that children's legal relationships with their parents are protected, regardless of how the parent-child relationship came into being.

Thanks to the National Center for Lesbian Rights, Equality California, the Academy of California Adoption Lawyers, attorney Diane Goodman and my beloved ex-client Kim Smith for their help in turning this hope for California children into a reality!


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