Articles Posted in Domestic Partnership

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A new law in California just passed that changes how pet custody is handled in divorce cases.

Previously, in the eyes of the court, pets were considered “property” when it comes to splitting up assets in a divorce and the ownership of the pet was argued in this way.

T.V. host David Tutera and his ex-partner Ryan Jurica reportedly split up after 10 years. According to an article in the L.A. Times, after initiating proceedings to end their domestic partnership, the two engaged in a heated battle over the future custody of their unborn twins. While still together, the couple transferred two embryos to a surrogate – one was biologically Tutera’s and the other was biologically Jurica’s. A court recently issued a temporary child custody order granting each parent custody of their own biological child. While this is more complicated than most child custody cases in San Diego, it involves the same fundamental procedures. For any child custody case, parents are encouraged to consult an experienced family law attorney with a proven record of competence and success.

In an earlier blog post, we reported on the couple’s break up and how each partner was seeking full custody of the unborn twins. In California, parents facing child custody decisions have several options. They may share custody or one of the parents may have primary custody. This is typically the most contentious issue to settle, since both parents usually want to spend as much time with their children as possible. Ideally, the parents will agree to an arrangement, which a judge must approve before it is official. If they cannot come to a mutually satisfactory arrangement, the court will impose a custody and visitation order.

Keep in mind that there are two types of custody: legal and physical custody. The parent with legal custody is the person who makes the significant decisions concerning the children, such as education, health care, and general welfare. But legal custody may be either joint – where both parents share the responsibilities and decision-making powers, or sole – where only one parent has the right and responsibility to make those decisions. Physical custody identifies the parent with whom the children live. Again, this arrangement may be either joint (where the children live with both parents) or primary (the children live primarily with one parent most of the time and visit the other).
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In San Diego and throughout California, child custody cases come in all shapes and sizes. Somewhat ironically, David Tutera, wedding planner and host of WEtv’s “My Fair Wedding” has been entrenched in a highly publicized divorce proceeding with his domestic partner, Ryan Jurica. Family law disputes have the potential to elicit strong emotions as spouses find the landscape of their lives changing drastically. As divorcing parents approach this very difficult time, the importance of consulting a local family law attorney who is experienced in matters of child custody cannot be overstated.

According to news reports, Tutera and Jurica married in Vermont in 2003, where same-sex marriage is legal. The couple also entered into a domestic partnership in California, where they lived. In 2013, ten years later, the two separated on New Year’s Day. The men are both fighting for custody of twins that they are expecting in July – with the help of a surrogate.

Under California Law, couples that enter into a domestic partnership must follow procedures in order to dissolve the relationship, which is also referred to as divorce or “dissolution of domestic partnership.” Once a couple has dissolved the relationship, they each can marry or become a domestic partner again.

Back in January, Tutera filed separation papers in Los Angeles County Superior Court citing “irreconcilable differences.” Tutera is asking the court for full custody of the children when they are born, visitation for Jurica, and denial of spousal support. Jurica recently filed divorce papers accusing Tutera of certain alleged sexual indiscretions. He is also seeking full custody of the twins and wants spousal support from Tutera, who allegedly earns $1 million a year. Tutera has refuted Jurica’s allegations as “baseless and untrue.”

As for the couple’s child custody issues, in California either parent can have custody of the children, or the parents can share custody. The parents can agree on the arrangement, but whatever they decide will be subject to the approval of a judge, who ultimately makes the decision about custody and visitation. In most cases, the judge will approve the arrangement agreed upon by both parents. In situations where the parents are unable to agree, the judge will render a decision at a court hearing. Typically, before that judge will order any particular arrangement for custody and visitation, the parents will have met with a mediator from Family Court Services to help sort through each parent’s demands.

It will be interesting to see how the court handles the contested child custody and visitation matters in this case, considering that the children are not born yet. Further complicating matters are Jurica’s allegations that Tutera is “addicted to sex” and has hired sex escorts and prostitutes to support his addiction. In refuting these statements, Turtera has stated that he believes Jurica is simply trying “to gain a legal advantage in our separation.”

Contested custody or visitation cases are complicated. Sorting through the local state laws pertaining to the issues at hand can be a tedious process. It is important to understand what laws affect you and your rights to custody and visitation.
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San Diego stepparents struggling with child custody and visitation matters are not treated the same way as biological parents, under state law. Biological parents are given the authority and responsibility to devise a “parenting plan” that they believe is in the best interests of the child. Of course, the court must approve the plan, but a stepparent’s wishes with respect to custody and visitation have no legal bearing on the process. If you are sorting through a child custody and visitation dispute, the best way to proceed is to consult with a local, experienced Family Law attorney who can vigorously protect your family’s rights.

A recent California court decision exemplifies the difficulties that stepparents can face when seeking to assert their rights in a child visitation matter. Tiela Chalmers and Michael F. agreed to have a baby together by artificial insemination and further agreed to joint legal and physical custody of their child. They are the biological parents of Eliana F. When Eliana was born, Tiela and Lisa Hirschkop were in a relationship and had registered as domestic partners. Between 2001 and 2006, Lisa was a stepparent to Eliana. The couple separated in 2006 and Tiela filed a petition for dissolution of the domestic partnership, which was granted in 2007. A short time later, Lisa filed a motion for stepparent visitation under California Family Code Section 3101.

Tiela opposed the motion and Michael filed a declaration in support of her opposition to the motion. The biological parents had chosen a parenting plan that gave Lisa a limited amount of visitation with Eliana. She asked the court to increase the number of hours per week with the child. In 2008, the court denied Lisa’s request, noting that she was asking for certain legal rights that are afforded to parents, and that she is not a legal parent of Eliana. The court emphasized that as parents, Tiela and Michael have the responsibility and duty to make decisions that they jointly determine are in the best interests of the child. The court refused to step in to alter a decision made agreeably by both parents, especially in light of the fact that Lisa had failed to raise any issue of detriment to the child. Lisa did not appeal the 2008 decision
In 2009, Tiela and Michael decided to reduce Lisa’s visitation time with Eliana. Lisa filed a motion for stepparent visitation and sought to modify the 2008 order denying her visitation. She also requested that Eliana be permitted to testify during the hearing. The court denied her motion and rejected her request. Lisa appealed.

The question before the court of appeals was whether an order denying a stepparent visitation rights can be modified. The court held that it cannot be modified under the circumstances. Under section 3101(a), courts are authorized to grant stepparents visitation if it is found to be in the best interests of the child, but there is no similar authority to modify an order made under that section. The court believed this omission by the Legislature was not unintentional.

Here, the court stated that only biological parents have a constitutional right to raise their kids. Perhaps if Lisa had adopted Eliana, things would have been different. Child custody and visitation laws in California can be complicated, depending on the family situation.
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Parents often struggle with child custody matters, even though both parties typically want what is best for the child. Complications inevitably arise. In this case, two women in a same-sex relationship, who never registered as domestic partners in any state, adopted a child from Russia, and then later separated. If you have questions about a child custody matter, you are encouraged to contact an experienced family law attorney in San Diego to assist you in protecting your rights.

In 2007, Beth C. and Marcia B. began looking to adopt a boy from Russia. Marcia B. was the only one registered as the adoptive parent because (1) Russia did not permit adoption by same sex couples, and (2) Beth was concerned about a DUI arrest on her record that could affect their chances of adopting.

After Marcia B. officially adopted Egor, whose name was changed to Ian B., Beth C. initiated the process to adopt him. The three moved from Illinois to New York, delaying the adoption process, which was never finalized. While the couple were in a relationship, Beth C. was a “stay at home” mom, caring for Ian B. and introducing him as her son. She took him to doctor appointments and Ian B. called her “mommy.” Marcia B. worked full time.

In August 2008, Beth C. and Marcia B. ended their relationship. They were living in Indiana at the time and continued living together until Ian B. finished kindergarten the following year. At the end of the school year, the couple agreed that Ian B. should move to California with Beth C. to live with her parents. Over the next 18 months, Marcia B. visited with Ian B. for several weeks each year, while Beth C. enrolled him in school in California, was listed as his mother in his medical records and introduced Ian B. as her son.

In February 2011, Marcia B. took Ian B. from Beth C.’s residence and did not bring him back. Marcia B. obtained a custody order restricting Beth C.’s visitation rights, who then filed a petition to establish her legal parentage. Both parents agreed to a bench trial to resolve whether Beth C. was Ian B.’s legal parent under the Family Code, section 7611, subdivision (d).
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When couples end a relationship, they are rarely thinking about the tax consequences associated with their decision. Although traditional divorce is generally not taxable, ending a domestic partnership, civil union, or gay marriage may have unexpected and painful tax consequences. To make matters worse, Internal Revenue Service guidelines that affect same-sex unions can be vague and difficult to navigate. Additionally, tax laws and rules change often. To protect the financial interests of both parties, gay couples and others ending a domestic partnership should be careful to make informed financial decisions ahead of time.

To illustrate what some are calling the gay divorce tax, consider how a couple’s assets are normally divided when they divorce. Oftentimes, a work-related retirement account in one member of the couple’s name is split between the parties. While divorcing heterosexual couples in California may divide the funds in the account equally using a Qualified Domestic Relations Order, same-sex couples cannot. Instead, unless the account owner has reached 59 1/2, he or she would be required to take a taxable withdrawal from the retirement account in order to divide the asset. In California, that means the withdrawal would be subject to both federal and state income taxes as well as a 10 percent premature distribution penalty. Unfortunately, that is before considering any potential gift tax issues.

Music star Melissa Etheridge made headlines when she discussed the high cost of ending her domestic partnership with Tammy Lynn Michaels. According to Etheridge, she was required to shell out twice as much money to end her union as would have been required if she were married. Like their heterosexual counterparts, gay couples in California and across the nation should discuss the possibility of divorce prior to entering into a legal union of any kind. Due to the host of complex issues associated with ending a civil or other legal partnership, same-sex couples must educate themselves ahead of time to ensure they make smart financial decisions. If you are considering entering into or ending a same-sex union in California, you should contact an experienced family law attorney who can help you protect your financial interests.
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The issue of gay marriage in California is likely headed to the U.S. Supreme Court after the Ninth Circuit recently refused to rehear arguments in support of Proposition 8, the California initiative that sought to ban same-sex marriage.

Proponents of Proposition 8 have 90 days from the date of the ruling to appeal the decision to the U.S. Supreme Court, and have already stated they intend to do so. The Ninth Circuit previously struck down Proposition 8 in February this year, stating that the law “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

The Supreme Court could hear the case in its next session that begins in October. While it is unclear whether the justices will ultimately grant an appeal, some believe that because Proposition 8 applies specifically to California, the Court probably will not. If it refuses, then the Ninth Circuit ruling would stand, and the ban would be lifted, granting marital rights to same-sex couples. If the Court decides to review the 9th Circuit decision, then it would likely render its own decision on the matter next year.

Under the current state of California law, same-sex couples are entitled to enter into domestic partnerships. California Family Code §297-297.5. This requires the couple to file a Declaration of Domestic Partnership with the California Secretary of State. California Family Code §297(b). Domestic partnerships are afforded all the rights and protections of a marriage, without being granted society’s official recognition of the relationship as a marriage per se.

In addition to the Proposition 8 matter, the Supreme Court may also agree to review a recent decision by the 1st Circuit that held that the Federal Defense of Marriage Act (DOMA) was unconstitutional. Like Proposition 8, DOMA, which was signed into law by President Clinton in 1996, defined marriage as being between a man and a woman. It therefore denies same-sex couples federal benefits afforded to heterosexual married couples, including survivor’s benefits, joint-tax filings, and the sharing of insurance benefits with spouses of federal employees. As well, this September, the 9th Circuit is scheduled to hear an appeal from a California case challenging DOMA on constitutional grounds for denying insurance benefits to the same-sex spouse of a federal employee.

For now, both Proposition 8 and federal law remain in full effect in California. In California, only those marriages that took place after gay marriage was legalized on June 16, 2008, and before Proposition 8 was passed on November 8, 2008, are deemed legitimate marriages under the eyes of the law. These marriages are not legally sanctioned in states that do not recognize gay marriage–all but eight as of this date.

Same-sex marriage is nevertheless the most rapidly evolving area of family law in California and across the country because of the numerous court rulings in its favor. If you are thinking of entering into a domestic partnership — or a same-sex marriage should the ban be struck down — you need to speak with an attorney who is knowledgeable about the nuances of both state and federal law with regard to your rights.
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In a move that may further polarize an already tense political atmosphere during an election year, President Obama announced recently on ABC News that he supports same-sex marriage. The announcement marks a reversal of the position he has maintained since he ran for national office in 2006. While the substance of the announcement likely surprised few, especially considering the changing social climate across the nation and the President’s decision to stop enforcing parts of the military’s “Don’t Ask, Don’t Tell” policy, it sparked much debate as to the strategy behind the revelation.

The President’s announcement came only a day after North Carolina voted to amend their state constitution to define marriage as between one man and one woman, joining thirty other states, including California, with similar such constitutional amendments.

The state of same-sex marriage in California is complex, to say the least. Between June 16, 2008, and November 5, 2008, the state permitted same-sex marriages. November 5, 2008, marked the passage of Proposition 8, which amended the state constitution to define marriage as between one man and one woman. The California Supreme Court interpreted Proposition 8 as having no effect on those same-sex marriages validly entered into between June and November, thus creating the complex state of marriage. Although Proposition 8 is being appealed and may even end up at the U.S. Supreme Court, California does not today recognize as marriage any union between persons of the same sex, except for those from the brief window in 2008.

The President’s announcement does not affect the legal status of same-sex couples in California or elsewhere in the nation. Indeed, he emphasized that his position was a personal one and that he supports the concept of states being able to decide for themselves how they want to define marriage.

In California, same-sex couples who are not legally married in the state currently have the option to enter into a California domestic partnership. California Family Code § 297-297.5 defines a domestic partnership as two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” While the state law confers many of the benefits of marriage upon domestic partners, advocates for same-sex marriage maintain that domestic partnerships are a mere approximation of marriage and that they are still socially inferior, if legally equivalent.

Same-sex couples, domestically partnered or not, can face a multitude of complex issues when they travel from one state to another. While a San Diego family law attorney can help a couple draft the documents necessary to ensure that many of their rights and obligations to each other are preserved across state lines, the laws in this field are in a constant state of flux, and there is no guarantee that another state or entity will acknowledge the significance of those documents.
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