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

(originally appeared in Lavender Lens)

Q: What is “Registered Domestic Partnership” in California?

A: California finally recognized and granted rights to Registered Domestic Partners by passing the Domestic Partners Rights and Responsibilities Act of 2003. California classifies “domestic partners” as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” In order to obtain these rights a couple must register with the State; registering with the County is INSUFFICIENT!

To register, a couple must:

• File a declaration of domestic partnership with the California Secretary of State.

• Share a “common residence” (regardless of ownership);

• Be at least 18 years of age; and of sound mind;

• Be either of the same gender, or of different genders but over the age of 62.

The couple may not:

• Be of close blood relation (California does NOT require blood tests);

• Be legally married, or in another domestic partnership that hasn’t yet been terminated.

  • If you’ve registered in the past with another partner, in another location, you must terminate that registration.

Q: What are some benefits of registering?

A: The major ones are:

If a private employer offers health insurance to the spouses of married employees, by law they also must offer the same insurance to the partners of employees in registered partnerships.

RDP confers upon each partner the right to receive support from the other, and likewise, the duty to support the other during the partnership. Upon a dissolution of the partnership, support is determined based on the same factors as apply to spouses. RDP confers the same “community property” rights regarding wages earned and property or debt acquired during the partnership as apply to a married couple.

RDPs have the right to hospital visitation and to make medical decisions and funeral arrangements for each other in California; however, these rights exist only within California and states recognizing our laws. RDPs should take every legal precaution available to ensure these rights will apply outside of California. This can be accomplished through the use of Advanced Health Care Directives and other legal means.

RDP status confers the legal “presumption” of parentage for both partners over children born during the partnership! Please note this is a presumption only, and can be rebutted. Post dissolution, the same custody, visitation, and support rights apply for the children of the partnership as would apply to spouses. This applies only within California or states which recognize California’s RDP statutes. This area of the law is still unstable, and RDPs should take every legal precaution possible to protect their family unit and their rights over their children. These can include 2nd parent adoptions, for example.

Q: What are some things to consider before registering?

A: The Federal Government does not recognize RDPs and, therefore, many rights which are conferred by the federal law do not apply to RDPs. Creating some confusion and inconsistency, as of 2007, RDPs are required to file California State tax returns as a married person, but to must file federal tax returns as single or Head of Household. RDPs are each responsible for debts incurred during the partnership. To dissolve your partnership, you will need to go through a formal Dissolution proceeding in family court unless you qualify for a “summary dissolution”. State registration is a public record. State benefits which commonly consider a spouse’s assets may consider a new partner’s assets, rendering the recipient ineligible.

At our firm, the concerns of most of our same-sex clients usually boil down to one thing: Children! These are complicated issues, and the law regarding this issue is still unstable. Having dealt with these issues both professionally and personally, I find helping my clients protect their family units, both in and out of Court, to be very rewarding. I’ve also helped many clients with children from prior relationships pursue child support from the other parent of their children.

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

By Rivka Israel, Esq. Marcus Family Law Center, PLC

(originally published in Lavender Lens, 11-08)

In my prior article I began with the statement “Now that marriage is possibly on the horizon…” The reason for my careful phrasing has now become clear. Between the time of the Supreme Court ruling in May and the “amendment” to the California constitution earlier this month, I and many other attorney’s were recommending that same-sex couples register as DP’s in addition to marrying. This was aimed at protecting the legal rights of couples and their families the validity of whose marriages would be in question if proposition 8 passed.

The Prop 8 issue has been on everyone’s minds. Why it passed and why it is so wrong? Why shouldn’t such a law pass by majority vote in a democracy? What effect, if any, does it have or is it only a ‘feel good’ issue with no real legal or social effect? Though many same-sex couples are not interested in getting married, everyone, regardless of race, religion or sexual orientation should be interested in the potential civil rights ramification of the legitimacy of such an “amendment” to our constitution.

Our system and our laws are designed to afford equal rights to everyone and to protect minorities from the oppression of the majority. This is one of the basic foundations that make our country so great. Here in California, there are two distinct procedures for making changes to our constitution. These procedures reflect the seriousness of the change. A change that is relatively minor and does not effect substantive rights is considered an amendment and can pass by way of obtaining sufficient signatures and then passing by majority vote. A change to the constitution that has a more profound effect, such as one which eliminates the fundamental rights of a minority group, must first be presented to both legislative houses and pass by a 2/3rds vote before being submitted to the voters. In addition, enforcement of equal protection is placed in the hands of the judiciary. The issue of people’s rights is not left to the majority. If the rights of an entire minority group can be eliminated by a simple majority vote, just think what other 1discriminatory laws can be enacted by a majority vote.

In May the Supreme Court concluded that 1) gay and lesbian citizens are a protected class of minority entitled to heightened protection and 2) marriage is a fundamental right under the due process and equal protection clauses of our state Constitution. The Supreme Court has now agreed to hear the matter of the legality of the amendment and its effects in the context of several cases filed after the election.

The issues which the Court will address are: 1) Is proposition 8 a revision rather than an amendment of the state Constitution? 2) Does proposition 8 violate the separation of powers doctrine of the state Constitution? & 3) If the proposition is constitutional, what effect will it have on the same-sex marriages performed before the adoption of the amendment? As a family law practitioner, I believe that the third issue is the most important on an individual basis, as it will determine many of the rights of these couples, relating to issues such as custody and property. Argument on the case is anticipated to take place in March of 2009.

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

On Dec. 22, 2008, the First Appellate District rejected the appeal from an incarcerated man seeking to retain parental rights and prevent adoption of his biological son.

In re: T.M. et. al. v. B.R., the child was born in September of 2006 in San Bernardino County. Father and mother knew each other for several years prior but were never married and never lived together. Father learned of mother’s pregnancy in February of 2006, and they discussed raising the child together. Father had a history of of drug use and was incarcerated for a four month term for breaking parole one week after discovering mother’s pregnancy.

At the time of father’s release, mother actively avoided contact with the father and in July of 2006, she put the unborn child up for adoption. Father learned of this and scheduled an appointment with an attorney, but he was arrested for methamphetamine use and sale as well as possession of a handgun.

Child was born on Sept. 10, 2006. After birth, mother relinquished child to a same-sex couple which had agreed to adopt in July.

That day, father filed a petition with the San Bernardino Superior Court to determine that he was the father and to halt any adoption proceedings until paternity was established. The adopting couple was unaware of these proceedings and filed an adoption request.

Father received a 12 year sentence for his crimes. From prison, he filed an objection to the adoption and stated that if his parental rights were not terminated, father’s parents should care for the child until father was released from prison.

On January 15, 2008, the San Francisco Superior Court held a hearing regarding the adopting couple’s request to terminate father’s parental rights. An expert testified that the child had bonded to the couple.

At the conclusion of the hearing, the trial court announced its decision that father did not qualify as a statutory presumed father, and was not entitled to the rights afforded to unmarried fathers by the Kelsey S. and Michael H. cases. The court found by clear and convincing evidence that child’s best interests would be served by terminating father’s parental rights, and ordered that his adoption by the couple should proceed despite father’s lack of consent. Father appealed.

Under the applicable statutory scheme in California (Fam. Code, §§ 7610-7612, 8604), the consent of a child’s biological father is not needed for an adoption unless he has qualified as a presumed father.

But under Kelsey S.,

an unwed father who has no statutory right to block a third party adoption by withholding consent may nevertheless have a constitutional right to do so under the due process and equal protection clauses of the Fourteenth Amendment and thereby to preserve his opportunity to develop a parental relationship with his child

In Michael H. the Supreme Court clarified that the father does not have this right unless he has promptly come forward and declared willingness to accept parental responsibilities.

Father maintained that mother’s avoidance prevented him from meeting the Michael H. criteria. Court rejected this assertion noting that father gave no support before mother began avoiding him and that it was his own actions which led to incarceration and inability to support the mother.

The court determined that;

Under these circumstances, we hold that the father did not make a showing of commitment to his parental responsibilities sufficient to entitle him to a hearing on his fitness before his parental rights could be terminated. Accordingly, we affirm the trial court’s order granting the prospective adoptive parents’ petition toterminate the biological father’s parental rights.