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.

Jan Forsberg had an intimate relationship with William Scott living for seven years with him and his three children from his prior relationship with Rachael Childress. Scott‟s relationship with Forsberg deteriorated in 2008. Scott, awarded sole legal and physical custody of his children in a UPA with Childress, moved out of Forsberg‟s home, taking the children with him and refusing Forsberg access.

Forsberg sought to join the dormant UPA action on the ground that she was entitled to custody and visitation as the children‟s presumed or de facto mother. The superior court granted Jan‟s petition for joinder over the objections of Scott and Childress and ordered the parties to mediate the matter of custody and visitation.

Scott then filed a petition for writ of mandate with the CA 3rd Apellate Court, seeking to overturn the superior court‟s rulings contending that Forsberg does not have standing to intrude into the parental role of Scott and Childress and to “diminish [their] rights to make decisions in the best interests of their children.”

The Appellate Court determined that the Superior Court was in error and vacated the decision. Neither of the children’s parents had at any time sought to change Scott’s status as sole custodian. Non-parent Forsberg had no standing to inject herself into the existing custody situation, declaring herself indispensable party to the custody of the children, the appellate court decided.