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.

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.

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

The area I find to be of most concern with the new Domestic Partnership laws pertains to our children. Many Same-Sex couples have the misconception that the current state of the law provides them with security in the parentage, and therefore custody, of their children. This misconception can lead to serious complications for the children of these couples in the future.

As discussed briefly in my prior article, per the Family Code section 297 et seq., RDP status provides Registered Domestic Partners the same rights and obligations with respect to the child of either partner as those held by spouses. Unfortunately, this protection is not what it may seem. A child born during a Marriage is presumed to be the child of both spouses. This is only a presumption which can be challenged. The same presumption applies to children of RDP’s. This presumption may be challenged, in some instances, without too much difficulty, especially when there is incentive to do so. The protection of this presumption also only applies to DP’s who are registered with the State at longer than the state mandated minimum period prior to birth of the child. This law will also not protect a child who is removed from California to another state that does not recognize our RDP laws. This presumption will also not protect a couple who use home insemination with a known donor to get pregnant.

The current controlling case law does not provide much more protection than do the statutes. The case law rests mainly on the intent to create/parent a child. The basic three guidelines the Court has used to determine parentage in cases involving Same-Sex couples are whether the Partner actively participated in causing the child to be conceived intending to parent the child jointly, whether the Partner voluntarily accepted the parenthood after the child was born, and whether there are competing claims to the Partner being the child’s second parent. Obviously, the last guideline can be a real problem. To date, the case law has held that known donors of Artificial Insemination can have competing parentage rights. In fact, the known donor will have rights unless certain steps are taken to cut off those rights.

So what can RDP’s do to protect their families while waiting for the law to catch up with life? While the rights of RDP’s are not yet what they should be, RDP’s do have avenues to better protect themselves and their families in the interim. First and foremost, when a child is born to an RDP couple the names of BOTH partners should be placed on the birth certificate. Second parent adoptions are still one of the best protections for parents and children, as this will protect the children in other jurisdictions as well. When using a known donor – make sure the sperm goes through the hand of a licensed physician! This will effectively cut off the rights of the donor even if the insemination itself occurs at home. Knowing and understanding the law and how it affects RDP families and proper legal planning in advance can help RDP’s protect their families.

Rivka Israel-Moss is an attorney with the Marcus Family Law Center

She can be reached at marcussd@barefootlawyer.com.

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.