AB371A - Makes various changes relating to parentage. (BDR 11-140)

(Reprinted with amendments adopted on May 24, 2023) SECOND REPRINT A.B. 371 - *AB371_R2* ASSEMBLY BILL NO. 371–ASSEMBLYWOMEN COHEN, BACKUS; AND BILBRAY-AXELROD MARCH 22, 2023 ____________ JOINT SPONSOR: SENATOR OHRENSCHALL ____________ Referred to Committee on Judiciary SUMMARY—Makes various changes relating to parentage. (BDR 11-140) FISCAL NOTE: Effect on Local Government: Increases or Newly Provides for Term of Imprisonment in County or City Jail or Detention Facility. Effect on the State: No. ~ EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. AN ACT relating to parentage; adopting provisions of the Uniform Parentage Act; revising provisions relating to the establishment of a parent and child relationship and the presumption of parentage; establishing provisions concerning the voluntary acknowledgment of parentage and denial of parentage by certain persons; authorizing the State Board of Health to adopt regulations relating to an acknowledgment of parentage or denial of parentage; establishing provisions governing genetic testing in proceedings to adjudicate parentage; establishing and revising various provisions relating to proceedings to adjudicate parentage; authorizing a person who claims to be a de facto parent of a child to be adjudicated as a parent of the child in certain circumstances; authorizing a court to adjudicate a child to have more than two parents in certain circumstances; establishing and revising provisions relating to assisted reproduction and gestational agreements; providing for the right of a gestational carrier to make all health care decisions regarding the gestational carrier and the pregnancy of the gestational carrier; repealing various provisions relating to parentage; providing a penalty; and providing other matters properly relating thereto. – 2 – - *AB371_R2* Legislative Counsel’s Digest: Existing law sets forth provisions governing parentage and the establishment of 1 parent and child relationships. (Chapter 126 of NRS) Sections 28-91 of this bill 2 generally replace such provisions with provisions modeled after those of the 3 Uniform Parentage Act (hereinafter “UPA”), adopted by the Uniform Law 4 Commission in 2017. Sections 4-26 of this bill define terms for the purposes of 5 chapter 126 of NRS that are modeled after the definitions of the terms used in the 6 UPA. 7 Existing law provides the manners in which the legal relationship of a mother 8 and child can be established, including: (1) except in the case of a gestational 9 agreement, proof that a woman gave birth to a child; (2) an adjudication that a 10 woman is the mother of a child; (3) proof that a woman has adopted a child; (4) an 11 unrebutted presumption of a woman’s maternity; (5) the consent of a woman to 12 assisted reproduction that resulted in the birth of a child; or (6) an adjudication 13 confirming a woman as a parent of a child born to a gestational carrier. (NRS 14 126.041) Existing law also provides the manners in which the legal relationship of 15 a father and child can be established, including: (1) an adjudication that a man is 16 the father of a child; (2) proof that a man has adopted a child; (3) the consent of a 17 man to assisted reproduction that resulted in the birth of a child; (4) an adjudication 18 confirming a man as a parent of a child born to a gestational carrier; (5) a 19 presumption of paternity that arises if a man was married to or cohabiting with the 20 natural mother of a child or resides with and holds out a child as his natural child; 21 (6) genetic testing establishing a man as the father of a child; or (7) a voluntary 22 acknowledgment of paternity by a man. (NRS 126.041, 126.051, 126.053) Section 23 34 of this bill uses the gender-neutral language of the UPA to set forth the 24 circumstances in which a parent and child relationship is established between a 25 person and a child. Similarly, section 37 of this bill uses the gender-neutral 26 language of the UPA to establish the circumstances in which a person is presumed 27 to be a parent of a child. 28 Sections 38-51 of this bill establish provisions modeled after those of the UPA 29 relating to the voluntary acknowledgment or voluntary denial of parentage by 30 certain persons, including provisions relating to the requirements for, rescission of 31 and challenge to an acknowledgment of parentage or denial of parentage. Section 32 42 of this bill provides that, unless an acknowledgment of parentage or denial of 33 parentage is rescinded or challenged, such an acknowledgment of parentage or 34 denial of parentage that meets all requirements of law and is filed with the State 35 Registrar of Vital Statistics is equivalent to an adjudication of the parentage of a 36 child or the nonparentage of a person, respectively. Section 43 of this bill prohibits 37 the State Registrar of Vital Statistics from charging a fee for filing an 38 acknowledgment of parentage or denial of parentage, and section 51 of this bill 39 authorizes the State Board of Health to adopt any necessary regulations relating to 40 an acknowledgment of parentage or denial of parentage. 41 Existing law provides that in an action to determine paternity, a court is 42 authorized or required, depending on the circumstances, to order genetic testing of 43 a mother, child, alleged father or any other person. (NRS 126.121) Sections 52-68 44 of this bill establish various provisions modeled after those of the UPA concerning 45 genetic testing, including: (1) the limitation on the use of genetic testing; (2) the 46 authority to order, facilitate or deny genetic testing; (3) the requirements of genetic 47 testing; (4) reports and costs of genetic testing; (5) additional genetic testing when a 48 result is contested; (6) genetic testing when a specimen is not available from an 49 alleged genetic parent; and (7) genetic testing of a deceased person or identical 50 sibling. Section 68 of this bill provides that a person commits a misdemeanor if, 51 without proper authority, he or she intentionally releases an identifiable specimen 52 of another person collected for genetic testing for a purpose not relevant to a 53 proceeding regarding parentage. 54 – 3 – - *AB371_R2* Existing law establishes various provisions relating to an action to determine 55 paternity or maternity. (NRS 126.071-126.231) Sections 69-89 of this bill replace 56 several of those provisions with provisions modeled after those of the UPA 57 governing proceedings to adjudicate parentage. Existing law provides that if an 58 action to determine paternity is brought before the birth of a child, all proceedings 59 are generally required to be stayed until after the birth of the child. (NRS 126.071) 60 Section 84 of this bill instead authorizes a proceeding to adjudicate parentage to be 61 commenced and an order or judgment to be entered before the birth of a child, but 62 requires enforcement of the order or judgment to be stayed until after the birth of 63 the child. 64 Existing law does not bar an action to determine paternity until 3 years after a 65 child reaches the age of majority. (NRS 126.081) Sections 75 and 76 of this bill 66 instead provide that a proceeding to determine whether an alleged genetic parent or 67 presumed parent, respectively, is a parent of a child may be commenced after the 68 child becomes an adult if the child initiates the proceeding. 69 Existing law requires that an informal hearing be held after an action to 70 determine paternity has been brought and further requires a court to attempt to 71 resolve the issues raised in the action during the pretrial hearing. (NRS 126.111) 72 Section 136 of this bill repeals the provisions relating to such a pretrial hearing, as 73 the UPA does not require any such pretrial hearing to be conducted. 74 Section 77 of this bill authorizes a person who claims to be a de facto parent of 75 a child to commence a proceeding to establish parentage of the child if the child is 76 alive and less than 18 years of age. Section 77 provides that a person who claims to 77 be a de facto parent of a child must be adjudicated as a parent of the child if there is 78 only one other person who is a parent or has a claim to parentage of the child and 79 the person who claims to be a de facto parent can demonstrate certain facts by clear 80 and convincing evidence. Section 81 of this bill authorizes a court to adjudicate a 81 child to have more than two parents if the court finds that failure to recognize more 82 than two parents would be detrimental to the child. 83 Existing law establishes provisions concerning assisted reproduction and 84 gestational surrogacy. (NRS 126.500-126.810) This bill establishes only certain 85 provisions modeled after those of the UPA relating to such matters. Section 92 of 86 this bill establishes provisions relating to the parental status of certain persons who 87 die before a child is conceived by assisted reproduction. Section 93 of this bill 88 authorizes a party to a gestational agreement to terminate the agreement at any time 89 before an embryo transfer or, if an embryo transfer does not result in pregnancy, at 90 any time before a subsequent embryo transfer. 91 Existing law requires that a gestational agreement provide for the express 92 written agreement of the gestational carrier to undergo embryo or gamete transfer 93 and attempt to carry and give birth to any resulting child. (NRS 126.750) Section 94 107 of this bill requires that a gestational agreement also provide for the express 95 written agreement of the gestational carrier and any legal spouse or domestic 96 partner of the gestational carrier to acknowledge that each intended parent is the 97 legal and physical custodian of any resulting child. Section 107 also specifies that a 98 gestational carrier has the right to make all health and welfare decisions regarding 99 the gestational carrier and the pregnancy of the gestational carrier, including 100 whether to: (1) consent to a cesarean section or the transfer of multiple embryos; 101 (2) use the services of a health care practitioner chosen by the gestational carrier; 102 (3) terminate or continue the pregnancy; and (4) reduce or retain the number of 103 fetuses or embryos carried by the gestational carrier. Section 107 further provides 104 that any provision in a gestational agreement that contradicts such a right is void 105 and unenforceable. 106 Existing law provides that the subsequent marriage or domestic partnership of a 107 gestational carrier after the execution of a gestational agreement does not affect the 108 validity of the agreement. (NRS 126.770) Section 108 of this bill provides that the 109 – 4 – - *AB371_R2* subsequent marriage, domestic partnership or divorce of any party to a gestational 110 agreement does not affect the validity of the agreement unless the agreement 111 expressly provides otherwise. 112 Existing law provides that if a gestational carrier breaches a gestational 113 agreement, a specific performance remedy that would require the gestational carrier 114 to be impregnated is prohibited. (NRS 126.780) Section 109 of this bill instead 115 provides that specific performance is not an available remedy with regard to a 116 gestational agreement except to enforce any provision in the agreement that is 117 necessary to enable the intended parents to exercise the full rights of parentage 118 immediately upon the birth of the child, if the intended parents are being prevented 119 from exercising such rights. 120 Sections 98-106 of this bill make various other changes to the provisions of 121 existing law concerning assisted reproduction and gestational surrogacy. 122 Section 136 repeals provisions of existing law that are not necessary because of 123 the establishment of the provisions modeled after those of the UPA in sections 124 28-91. 125 Sections 1, 94-97, 110-133 and 136 of this bill make conforming changes to 126 reflect the revisions made to existing law because of the establishment of the 127 provisions modeled after those of the UPA in sections 28-91 and the repeal of 128 unnecessary provisions in section 136. 129 THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. NRS 125C.003 is hereby amended to read as 1 follows: 2 125C.003 [1.] A court may award primary physical custody 3 to a parent if the court determines that joint physical custody is not 4 in the best interest of a child. An award of joint physical custody is 5 presumed not to be in the best interest of the child if: 6 [(a)] 1. The court determines by substantial evidence that a 7 parent is unable to adequately care for a minor child for at least 146 8 days of the year; 9 [(b) A child is born out of wedlock and the provisions of 10 subsection 2 are applicable;] or 11 [(c)] 2. Except as otherwise provided in subsection 6 of NRS 12 125C.0035 or NRS 125C.210, there has been a determination by the 13 court after an evidentiary hearing and finding by clear and 14 convincing evidence that a parent has engaged in one or more acts 15 of domestic violence against the child, a parent of the child or any 16 other person residing with the child. The presumption created by 17 this [paragraph] subsection is a rebuttable presumption. 18 [2. A court may award primary physical custody of a child 19 born out of wedlock to: 20 (a) The mother of the child if: 21 (1) The mother has not married the father of the child; 22 – 5 – - *AB371_R2* (2) A judgment or order of a court, or a judgment or order 1 entered pursuant to an expedited process, determining the paternity 2 of the child has not been entered; and 3 (3) The father of the child: 4 (I) Is not subject to any presumption of paternity under 5 NRS 126.051; 6 (II) Has never acknowledged paternity pursuant to NRS 7 126.053; or 8 (III) Has had actual knowledge of his paternity but has 9 abandoned the child. 10 (b) The father of the child if: 11 (1) The mother has abandoned the child; and 12 (2) The father has provided sole care and custody of the child 13 in her absence. 14 3. As used in this section: 15 (a) “Abandoned” means that a mother or father has: 16 (1) Failed, for a continuous period of not less than 6 months, 17 to provide substantial personal and economic support to the child; or 18 (2) Knowingly declined, fo [Text truncated for display. Full text available on LegiScan.]