In a decision issued August 4, 2010, Vaughn Walker, Chief Judge of the United States District Court for the Northern District of California, ruled that Proposition 8, which defines marriage as strictly between a man and a woman, is unconstitutional as violative of both the Due Process and Equal Protection Clauses. Proposition 8 was passed by a narrow majority of voters in November 2008 and has been in litigation ever since.

According to Walker, the 18,000 gay marriages granted between June 16, 2008 and November 5, 2008 (the brief window during which same-sex marriages were legal) have not and do not pose any public harm. Walker ordered an entry of judgment permanently enjoining enforcement of Proposition 8. However, Walker also ordered a temporary stay of execution of that judgment pending the anticipated appeals to higher courts, perhaps all the way to the Supreme Court.

Both current governor, Arnorld Schwarzenegger, and former governor and current gubernatorial candidate, Jerry Brown, delivered letters to the Chief Judge on August 7, 2010, opposing the stay. “The Administration believes the public interest is best served by permitting the court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California,” Schwarzenegger wrote in his letter.

In 2005, self-represented Contra Costa county resident, Jeffrey Elkins, was barred by local rules from testifying in his own divorce case. The rule was supposed to expedite hearings by keeping lengthy testimony out of the Court room. The result was a crushing judgment which left Elkins with virtually nothing.

Elkins appealed the decision, and in the landmark 2007 Elkins v. Superior Court (Elkins) (2007) case, Chief Justice Ronald George lambasted the Contra Costa local rules, and by extension, the California Family Court system as a whole:

“[Judges] must abide by the guiding principle of deciding cases on their merits rather than on procedural deficiencies. Such decisions must be made in an atmosphere of substantial justice…The strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.”

The result was the Elkins Family Law Task Force, appointed in May 2008 to conduct a full review of family law proceedings. The Task Force concluded work on April 23, 2010, presenting a 113 page report containing 21 main recommendations and 117 specific recommendations to the Judicial Council of California calling for sweeping changes to the system.

“California’s family courts are struggling with enormous caseloads, complex legal issues, and increasing numbers of self-represented litigants,” Judicial Council chair Chief Justice Ronald M. George stated. “I am pleased that the Elkins Family Law Task Force has developed comprehensive
recommendations to provide greater access to justice, improve processes and procedures, and address the critical resource needs of these important courts.”

The entire report can be found here.

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.

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 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 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 April 4, 2008, the Second Appellate District reversed a Findings and Order granting a Petition by a child’s biological father seeking that he was the child’s presumed father stating that:

. . . a biological father seeking reunification with a child, who does not come forward in the dependency proceeding until after the reunification period has ended, must establish under section 388 that there are changed circumstances or new evidence demonstrating the child’s best interest would be promoted by reunification services. The rule is the same whether his paternity was concealed from him or not. (Full text of 04/08/2008 Opinion.)

In re: Vincent M. the child was born in February, 2006 after Petitioner had moved to New York without mother to attempt to gain custody of a child from a previous relationship. Mother had originally told another man that he was the father and had not informed the Petitioner in this case that she was pregnant. At the child’s birth, Mother told the other man that the child had died, surrendered the child to the hospital, and refused to identify the father. The child was placed with prospective adoptive parents and on 03/08/06, the junior court found that the whereabouts of Mother and identity of the Father of the child were unknown, declared the child a court dependent, and moved to the permanency stage of the dependency action.

In September, 2006 a new paternity test revealed that the other man was not the father and Mother contacted the Petitioner to inform him that he was. In October, 2006 Petitioner took a paternity test and was determined to be the biological father of the child. Petitioner then filed his Petition seeking a Declaration that he was the child’s presumed father, and thus entitled to reunification services with the child, despite the time period for such services having expired.

The Second Appellate District found that father did not meet the definition of presumed father status under Civil Code section 7004, subdivision (a) and stated that presumed father status is not related to biology. In discussion of the decision, the court stated, “For a biological father who does not assert paternity until after the expiration of any reunification period, the ‘only remedy’ is to file a petition to modify under section 388″ which requires a showing of new evidence or changed circumstances showing that reunification services or granting custody to the biological parent would be the best interests of the child. As the lower court did not consider the best interests standard, the Findings and Order was reversed and father was directed that he may file another Petition for which the court would have to consider the current status and best interests of the child in making its ruling.

Parents and prospective adoptive parents can find more information about a biological parent’s right to reunification services under California law at adoption.com.

On April 8, 2008 the Fourth District Appellate court provided direction on which standard to apply in cases seeking a change in parenting and visitation post Judgment.

In re Marriage of Lucio, the Judgment of Dissolution from 2004 awarded both parents joint legal custody and granted sole physical custody to Mother with monitored visitation to Father. In April, 2006, Father filed an Order to Show Cause seeking joint physical custody of the children. The trial court denied Father’s Order to Show Cause, and prior to the order on the first Order to Show Cause being entered, Father filed a second Order to Show Cause requesting a modification to the parenting plan with no monitored visits. Father filed supporting Declarations which spoke to the concerns regarding the Penal Code violations (which had led to initiating monitored visitation), but the trial court ruled that Father had failed to allege a change of circumstance since the denial of the first Order to Show Cause and therefore dismissed the second Order to Show Cause.

The Appellate court reversed the lower court’s decision to apply the changed-circumstances standard and directed the court to reconsider the Father’s Order to Show Cause under the best-interests standard, summarizing its reasoning as follows:

Under the changed circumstance rule, after the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, custody modification is appropriate only if the parent seeking modification demonstrates “‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest.” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.) But the changed circumstance rule does not apply when a parent requests only a change in the parenting or visitation arrangement not amounting to a change from joint custody to sole custody, or vice versa. Instead, the trial court considers a request to change the parenting or visitation arrangement under the best interests of the child standard. (Full text of 04/08/2008 Opinion.)

The Appellate court stated that the Father’s requested changes to the visitation schedule did not create a de facto change in custody and would not disrupt the children’s established patterns of care and emotional bonds with Mother or destabilize the sole physical custody arrangement.

The court relied on a number of previous cases, including Enrique M. v. Angelina V. (2004) , In re Marriage of Birnbaum (1989), In re Marriage of Burgess (1996), and Niko v. Foreman (2006) continuing the pattern of distinguishing a request for change of custody from a request to modify the visitation schedule or co-parenting arrangements.

On February 28, 2008 the Second Appellate District granted a petition for extraordinary writ which reversed the lower court’s decision refusing to order parents to enroll their children to attend public or private school. The lower court found that parents have a constitutional right to homeschool their children, while the Second Appellate District reversal stated:

It is clear to us that enrollment and attendance in a public full-time day school is required by California law for minor children unless (1) the child is enrolled in a private full-time day school and actually attends that private school, (2) the child is tutored by a person holding a valid state teaching credential for the grade being taught, or (3) one of the other few statutory exemptions to compulsory public school attendance (Ed. Code, § 48220 et seq.) applies to the child. In re Rachel L. (Full text of 02/28/08 disposition)

The decision received mainstream media attention. The Los Angeles Times reported apprehension among current homeschooling families fearing prosecution under the new ruling and the San Francisco Chronicle reported on Governor Schwarzenegger’s pledge to intervene if the rights of parents to homeschool their children were challenged.

On March 25, 2008 the Second Appellate District granted the petition for rehearing filed by the parents In re Rachel L. and allowed for submission of an amicus curie brief by the school through which the parents had operated their homeschooling program. The brief shall address whether parents have the right to homeschool their children and whether California law permits homeschooling by non-credentialed parents. The court further announced its intention to hear the matter on its June, 2008 calendar and to solicit amicus briefs on the issues from the California State Superintendent of Public Instruction, California State Board of Education, California Federation of Teachers, California Teachers Association, and United Teachers Los Angeles. The court will also consider timely applications for amicus briefs from other interested parties.

According to the Los Angeles Times, as many as 166,000 homeschooled children will be affected by the court’s eventual decision on this matter.