The historic 1502 6th Avenue building in San Diego, formerly Obama campaign headquarters, has now become the downtown office for the AAA Legal Relief Clinic: the all-in-one, do-it-yourself resource that helps you be the best pro per possible. Just across the street from the 6th Avenue family law courthouse, the Clinic offers a wide variety of services. Its friendly and knowledgeable staff help you with document preparation and service. The Clinic’s comfortable offices are equipped with fax machines, fast printers, heavy-duty copiers and internet-accessible modern computers. And for those matters that turn out to be too much for one person to handle, an MFLC attorney is never more than a call away.

For more information, contact (619) 704-2604 or just stop by. The Clinic is open Monday through Friday from 7:30 a.m. to 5:00 p.m.

Proposition 8, the constitutional amendment passed into law by the majority of California voters in November 5, 2008, provides that “Only marriage between a man and a woman is valid or recognized in California.”

But on October 12, Governor Arnold Schwarzenegger signed into law SB 54 which states that while California’s constitution remains unchanged, California courts will recognize out-of-state same-sex marriages which contracted prior to the passing of Proposition 8.

The new law does not recognize out-of-state same-sex marriages contracted after November 5, 2008, but it does provide that parties contracted in out of state same-sex marriages would be afforded the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, as specified, as are granted to and imposed upon spouse with the sole exception of the designation of “marriage”.

A legal challenge to constitutionality of Proposition 8 goes before the Supreme Court early next year.

California Rules of Profession Conduct rule 1-650, operative 8/28/29, says that an attorney who provides short-term limited legal services under the auspices of a program sponsored by a court, government agency, bar association, law school or nonprofit organization is subject to rule 3-310 (which prohibits representing multiple parties whose interests are mutually adverse) only if the member knows that the representation of the client involves a conflict of interest or if the member knows that another lawyer associated with the member in a law firm would have a conflict of interest with respect to the matter.  If, after commencing a short-term limited representation in accordance with rule 1-650, a member undertakes to represent the client in the matter on an ongoing basis, rule 3-310 and all other rules become applicable.

According to the State Bar of California Website:

“Courts, government agencies, bar associations, law schools and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services - such as advice or the completion of legal forms that will assist persons in addressing their legal problems without further representation by a lawyer. In these programs…there is no expectation that the lawyer’s representation of the client will continue beyond that limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.

“A member who provides short-term limited legal services pursuant to rule 1-650 must secure the client’s informed consent to the limited scope of the representation. If a short-term limited representation would not be reasonable under the circumstances, the member may offer advice to the client but must also advise the client of the need for further assistance of counsel.”

More information on this new rule can be found at the California State Bar Rules page.

Karen Victoria Dahlberg Wynn won an appeal, 08/04/09, to correct her original birth certificate to state the actual names of her birth parents rather than the fictitious names her mother used when the original certificate was prepared.

Karen was the result of an unplanned pregnancy in 1949. Karen’s mother, an enrolled member of an Indian tribe, hid the pregnancy from her family and community . She falsified her name and the name of the father on the birth certificate. In 1951, she gave Karen up for adoption. She was adopted by the Dahlberg family and a new certificate of live birth was issued listing Karen as their daughter. The old certificate was sealed as part of the adoption process.

In 1981, Karen obtained the release of her adoption file, which revealed the  true names of her biological parents. She also obtained an order from the Fresno Superior Court unsealing her birth record. In 2001, Karen contacted her biological mother and established an ongoing relationship. Karen wanted to join her mother’s tribe but was told by the tribe’s enrollment office that they needed an amended version of her original birth record that changes the name of her natural mother from the fictitious name to the correct name one. Karen filed a motion to have her certificate changed and have Karen’s biological mother be recognized as such.

The matter was heard by the superior court on December 8, 2008. The superior court denied the petition, stating that the court’s jurisdiction was limited and it did not think it “appropriate for the Court to correct an original birth certificate when that is meaningless for legal purposes, for the Court’s purposes, because her new birth certificate [from the adoption] establishes who  her legal parents are and I’ve never had a situation where anyone [has] asked to fix a  birth certificate that no longer has any force and effect in terms of legal status of parent and child.”

Fifth Court of Appeal reversed this decision. The Court determined that current statute did not allow Karen to change the names on her original birth certificate–only that minor clerical changes could be made. But the crux of the case was whether any kind of legal relationship could exist between biological mother and child after child has been adopted. In this case, the Indian tribe membership was the legal tie, and the Court determined that it had the right to adjudicate on the issue of a biological mother-child relationship.

The Court also found that it had the authority and duty to change Karen’s certificate according to one of the provisions in part 3(Uniform Parentage Act) of division 12 (Parent and Child Relationship) of the Family Code applicable to the father and child relationship is section 7639, which states:

“If the judgment or order of the court is at variance with the child’s birth
certificate, the court shall order that a new birth certificate be issued as
prescribed in Article 2 (commencing with Section 102725) of Chapter 5 of
Part 1 of Division 102 of the Health and Safety Code.”

The matter was remanded to the superior court to adjudicate the facts of Karen’s parentage and, if appropriate, order the issuance of a new birth certificate to correct appellant’s original birth certificate.

With the signature of Governor Schwarzenegger, AB 706 took effect as urgency legislation on 8/5/09.  It adds §361.49 to the Welfare and Institutions Code providing that:

Regardless of his or her age, a child shall be deemed to
have entered foster care on the earlier of the date of the
jurisdictional hearing held pursuant to Section 356 or the date that
is 60 days after the date on which the child was initially removed
from the physical custody of his or her parent or guardian.

AB 706 also amends W&I C §361.5 providing that court-ordered services for children three and older shall end 12 months after the child entered foster care.  The bill also limits the duration of services provided where a child is under three and makes changes to requirements for filing motions to terminate services.

Full text of the bill can be found here

The Marcus Family Law Center, PLC has opened a new office in downtown San Diego just across the street from the Family Court House.  The new facility at 1502 6th Avenue is sited in one of San Diego’s most historic houses.  Built more than 150 years ago, it was President Obama’s San Diego campaign headquarters in 2008.   Once all alone on its hill, it now marks the entrance to the new Gaslamp District.

The downtown office will allow much more efficient access to the court for appearances and filings.  The new office will also provide a more convenient location for consultations and meetings for downtown clients.  At a time when others are downsizing, the Marcus Family Law Center is growing to meet the needs of its clients.

For more information, contact the San Diego office at (858) 689-2700 or call out toll free number: (866) SAY-FOOT.  By e-mail, contact marcussd@barefootlawyer.com.

In Vernoff v. Astrue 9 Cir No. 08-55049, the 9th Circuit Court, June 17, upheld a decision by the Social Security Administration [SSA] not to award survivor benefits to the artificially conceived son of California resident Gabriela Vernoff. The child was born three years after the death of Vernoff’s husband via artificial insemination. Vernoff then filed claim with the SSA seeking child-survivor benefits for the child-survivor benefits for her son and mother-of-survivor benefits for herself. SSA denied her claim. Vernoff appealed to an administrative law judge who upheld the SSA’s decision. She then appealed to the District Court.

The 9th Circuit Court had recently decided in Gillett-Netting (9 Cir 2004) 371 F.3d 593 that posthumously conceived children are eligible for SSA survivor benefits, but the Court affirmed the SSA’s decision in Vernoff asserting that the child was not dependent on the father when he died. Unlike in Gillett, which was decided in Arizona where a biological tie is sufficient to establish paternity, California law requires a relationship between father and son. The Court discarded Vernoff’s argument that intestacy laws established a parental link noting that Vernoff’s husband did not agree to the posthumous conception, and that the conception took place three years after his death, thus disqualifying the child from intestate inheritance.

The California Supreme Court, May 29, determined 6-1 in re Strauss v. Horton (S168047) that Proposition 8, the 2008 constitutional amendment which simply states that “Only marriage between a man and a woman is valid or recognized in California,” is a legal amendment.

Prop 8, passed by 52% of the voters last November, was put on the ballot in response to a prior supreme court decision in re Marriage Cases (2008) 43 Cal.4th 757 . The Court then upheld the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage”

The Supreme Court affirmed the constitutionality of the amendment, arguing that Prop 8 does not fundamentally alter the meaning or the substance of state constitutional equal protection principles. Only the designation “marriage” is reserved from same-sex couples. All other protections granted under the law are undisturbed, the court decided.

The Court did not, however, overturn the thousands of marriages created between the Marriage Cases decision and the passing of Prop 8. It was determined that the Court has a duty to interpret and enforce California’s Constitution in its current form, not as it was when the court decided Marriage Cases.

As the lone dissenter, Justice J. Moreno said, “requiring discrimination against a minority group on the basis of a suspect classification strikes at the core of the promise of equality that underlies our California Constitution and thus ‘represents such a drastic and far-reaching change in the nature and operation of our governmental structure that it must be considered a ‘revision’ of the state Constitution rather than a mere ‘amendment’ thereof.’”

Justice Moreno concluded, “Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons.”

On the day of the Strauss v. Horton decision, the American Foundation for Equal Rights filed suit in U.S. District Court for the Northern District of California to challenge the validity of Proposition 8. The American Foundation for Equal Rights also filed a preliminary injunction that would, if successful, immediately restore same-sex marriage in California until the federal suit is decided.

by the Judicial Council of California

SAN FRANCISCO—A new domestic violence study has found that the strongest predictors of success in treating offenders convicted of a criminal domestic violence offense were the individual characteristics of the offenders, not the features of batterer intervention programs (BIPs) or the attributes of the court jurisdiction.

The study, conducted by researchers at the Administrative Office of the Courts’ Office of Court Research, found that offenders who are more educated, are fully employed, have short criminal histories, and show no clear signs of drug or alcohol dependence are more likely to successfully complete batterer intervention programs and are least likely to be re-arrested.

The results of the study indicate how the justice system can increase the likelihood that batterers will complete court-ordered education and training programs and not commit new acts of domestic violence either during or after attendance in the programs.

“Screening mechanisms should seek, to the extent possible, to include needs assessment to assist in directing offenders to resources that might improve their chances of successfully completing the BIP and remaining violence free during and following their attendance in the program,” concluded the study, which is entitled Batterer Intervention Systems in California – An Evaluation and can be found online at www.courtinfo.ca.gov/reference/batintsys.htm

The federally funded study, the largest of its kind ever conducted, examined data on nearly 1,500 offenders enrolled in 53 different batterer intervention programs in Los Angeles, Riverside, San Joaquin, Santa Clara, and Solano Counties. The study sought to identify variations in policies and practices across courts, probation departments, and batterer intervention programs that affect the likelihood of an offender completing the program and the probability of being re-arrested.

However, the data revealed that the strongest predictors of outcomes were the individual characteristics of the offenders, not the programs in which they were enrolled or the characteristics of each court jurisdiction. The study has been submitted to the National Institute of Justice, which provided $250,000 in funding for the three-year study.

Under California law, persons convicted of a criminal domestic violence offense must attend a 52-week batterer intervention program as a condition of probation. The programs are structured courses designed to stop the use of physical, psychological, or sexual abuse to gain or maintain control over a person such as a spouse or cohabitant.

# # #

The Judicial Council is the policymaking body of the California courts, the largest court system in the nation. Under the leadership of the Chief Justice and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. The Administrative Office of the Courts carries out the official actions of the council and promotes leadership and excellence in court administration.

By Rivka Israel-Moss, Marcus Family Law Center, PLC

(originally published in Lavender Lens)

In my last article covering children of Domestic Partners I listed a few ways RDP’s can protect their families while waiting for the law to catch up with life. I will elaborate here. The first thing a Gay couple will want to do to protect their relationship with their children is to Register as Domestic Partners. This gives a same-sex couple the same rights, in California, as those of spouses. This, by no means, is enough. It is certainly advisable to take the additional steps necessary to obtain a court Judgment declaring that both partners are the child’s legal parent. This is extremely important to ensure that the child’s relationship with both partners/parents will be respected by other states as well as the federal government and to avoid the possibility of litigation over this issue should the couple split up. It is also good practice to prepare a parenting agreement in advance and to place the names of both partners on the child’s Birth Certificate at the time of birth. While this does not provide any guarantees, it does reflect an intention regarding parentage and co-parenting.

There are several ways in which RDP’s can obtain a court Judgment recognizing their legal rights for their child. One can either obtain a Judgment of Parentage under UPA or one can obtain such a Judgment through adoption. When conception is doctor assisted via Artificial Insemination, where the donor retained no legal rights, second-parent adoption is a means by which the law may recognize the legal rights of both partners. Registered Domestic Partners have the option of using the Step-Parent/Domestic Partnership adoption process which is streamlined and therefore faster and less expensive than other methods. Neither of these methods of adoption require the biological/original legal parent to relinquish any of their rights. The adoption process is not particularly difficult or complicated but it can feel intrusive to have the court “grant” an adoption of a child which one feels is already theirs. Thinking of the adoption as a means to an end may make this process easier to swallow. The adoption process also has its limitations and potential pitfalls. For example, if the couple used a known donor and did not involve a doctor in the Artificial Insemination, consent for the adoption may need to be obtained from the biological father. A Judgment of Parentage, as an option for obtaining a legal recognition of Parentage, will have its own problems and limitations.

The nagging question is “do we have to wait until the child is born to protect our family unit?” The answer is “No!” Sometimes early action can be critical and the time of birth is already too late. Although one can only adopt a child who already exists, there are many things that can be done while waiting for and at the time of the birth. The adoption paperwork can be started, an advance parenting plan can be drafted and signed, Domestic Partners can register with the state, and a parentage action can be started prior to the birth of the child, to name a few.

Rivka Israel-Moss is an attorney with the Marcus Family Law Center. She can be reached at marcussd@barefootlawyer.com.