Same-Sex Marriage

Same-Sex Couples Who Marry Could Encounter Obstacles to Divorce

October 21, 2014 | by Roy M. Doppelt

Laws governing marriage and divorce vary from state to state, including whether the jurisdiction recognizes a same-sex union. Just recently, the United States Supreme Court refused to hear any cases on same-sex marriage from the lower courts, enhancing the momentum of the legalization of gay marriage. In fact, there is speculation that this inaction could lead to the legalization of same-sex marriage in 30 states throughout the country. But history has shown that not all marriages last, no matter what the orientation of the couple. And while the laws addressing the marriage of same-sex couples seem to be continuously evolving, the same cannot be said for divorce. Divorce is complicated, no matter who you are. In order to effectively protect your rights, it is imperative that you contact an experienced family law attorney with knowledge of the laws and procedures affecting couples in and around the San Diego area.

California is one of the states that recognize same-sex marriage. Just this past year, Governor Jerry Brown signed a state Senate bill to officially repeal the state’s ban on gay marriage and reflect federal court decisions. According to news reports, the Governor signed Senate Bill 1306, written by State Senator Mark Leno (D-San Francisco), which redefines marriage in the California Family Code as a contract between two persons regardless of sex. One article explains that the legislation will amend language used in California’s laws by removing “outdated and biased language.” The statutes will replace references to husband and wife with gender-neutral language, such as “spouses” or “married persons.” The Bill will go into effect in January 2015.
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California Legislature Will Consider Bills to Update State Family Law

July 31, 2014 | by Roy M. Doppelt

According to recent news reports, the California Family Law Code seems to be in need of some updates. As we can see from many advances in technology and science, as well as the evolution of the “family” itself, assorted state laws have yet to keep up with these many changes. California legislators will return from their summer break to review and consider bills that would update the state family code in various ways. If you are involved in any family law proceeding, such as a divorce or other related matters involving child custody, spousal support, and the like, you are encouraged to contact an experienced San Diego family law attorney, who diligently remains up-to-date on any and all changes to the state’s family code.

Some of the new legislation relates to cases that we have reported on in earlier blog posts. For example, one of the current bills, AB 2344, also known as the Modern Family Act, would (among other things) create methods for sperm donors and surrogate mothers to clarify their financial and parental responsibilities concerning biological children. This Bill was partly inspired by the real case of Jason Patric, who sought custody rights over a child he fathered through in-vitro fertilization. In our most recent blog post covering the case, we reported on the court’s holding, namely that the current law does not preclude Patric from establishing that he is the presumed parent under the Family Law Code. AB 2344 is the latest edition of legislation pertaining to sperm donors in California. Just last year, broader legislation addressing the matter failed. That Bill would have permitted sperm donors to petition for parental rights, if they demonstrated involvement in their biological children’s lives.

Another Bill addresses the rights of adult children to seek visitation of their grandchildren (AB 1628) under circumstances where the parent is absent due to incarceration or institutionalization. Additionally, in response to the widely publicized conflict between Casey Kasem’s children and his second wife, Assemblyman Mike Gatto sponsored another Bill, AB 2034, that would permit adult children to seek visitation rights of their parents over any objections by a future spouse (stepparent). It is hoped that this Bill will be a simpler alternative to the current law.
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American Academy of Pediatrics Supports Same-Sex Marriage as Benefiting Children in Child Custody Matters

March 26, 2013 | by Roy M. Doppelt

People get married every day. It is a right that many of us take for granted. With the right to marry comes the concomitant right to divorce, should that be the unfortunate course a married couple pursues. California law affords divorcing parents a slew of rights when it comes to settling child custody and visitation matters, among many other issues. If you are a parent considering divorce, you are encouraged to contact an experienced San Diego Family Law attorney to guide you through an often complicated and emotional court process.

The rights that many of us take for granted are the very same ones that couples in same-sex relationships are not necessarily entitled to, depending on where they live. This week is a momentous moment as the highest court in the country is currently hearing and deciding two separate issues relating to same-sex marriage. The cases involve DOMA, the Defense of Marriage Act, and Proposition 8, an amendment to the California constitution. Both of these items define marriage as a union involving a man and woman. The Unites States Supreme Court is hearing arguments this week on both items, on separate days.

In earlier actions, federal appeals courts struck down both laws, and some expect the Supreme Court to do the same. Organizations have been stepping forward at this crucial moment to lend support to overturning laws that have been deemed unfair and not in the best interests of families. In a bold move, just last week, the American Academy of Pediatrics for the first time announced its support for same-sex marriage, stating that permitting gay and lesbian parents to marry if they so desire is in the best interests of their children.

According to a New York Times article, the academy’s recent policy statement says same-sex marriage helps guarantee rights, benefits and long-term security for children. This includes all matters relating to a marriage, including parents’ rights in a divorce proceeding. The academy cites another pertinent reason that same-sex couples should be allowed to marry: divorce laws provide for a legally structured arrangement for visits and child custody.

According to Dr. Ellen Perrin, a co-author of the new policy, “If people can’t get married, then they can’t get divorced.” Dr. Perrin adds, “That legal system that exists to protect our most vulnerable, namely children, isn’t in play.” And while many of us think of divorce as a contentious, stressful point in a family’s life, we sometimes forget that the legal process exists, at least in part, to protect children. That protection includes ensuring that the ultimate child custody arrangement is the right one, and one that is approved by the court.

In a few short months, the Supreme Court will render decisions in both cases. It seems that if the Court finds that same-sex couples should be afforded the same marriage rights as heterosexual couples, children of those unions will certainly benefit. The article indicates that marriage strengthens families and fosters children’s development. It also provides protection to children of parents who ultimately decide to divorce.
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California Watches as Arizona Judge Considers Whether to Allow So-Called ‘Pregnant Man’ and Wife to Divorce

December 18, 2012 | by Roy M. Doppelt

In 2002, a woman who was born Tracy Lagondino reportedly underwent surgery to become a man. Around the same time, the transgender man also began male hormone therapy and had his upper body contoured into that of a man. Although Thomas Trace Beatie was legally declared a male, his female reproductive organs were allegedly left intact. Soon after, Beatie reportedly married and began a family. Not long after Beatie learned his wife, Nancy, was physically unable to become pregnant, he decided to carry the couple’s children. Beatie soon became a nationwide celebrity known as the “pregnant man.” Eventually, Beatie gave birth to three children. As occurs in about half of all United States marriages, 38-year-old Beatie and his wife of nine years are now asking a court to dissolve their marriage.

While Beatie and his estranged spouse attempt to work out the details associated with the end of their marriage, a Maricopa County, Arizona Superior Court judge, Douglas Gerlach, has reportedly called the couple’s legal union into question due to the fact that Beatie gave birth to their three children. In the State of Arizona, a court will not recognize a same-sex marriage, even if it was performed legally in another state.

Despite that Beatie’s birth certificate and driver’s license now state he is a man, Judge Gerlach has said Beatie is the biological mother of the couple’s children by any reasonable legal standard he can come up with. Because of his misgivings over the couple’s legal status, the judge even asked the Arizona Attorney General’s Office to weigh in on the matter. The Attorney General, however, reportedly declined to issue an opinion regarding the former couple’s marriage. Judge Gerlach is expected to make a determination regarding the couple’s marital status in February 2013. Still, the judge stated he will divide the former couple’s assets and determine child custody even if he refuses to dissolve their marriage.

As demonstrated by this case, same-sex marriage is a quickly evolving area of family law in both California and throughout the nation. If you are considering entering into a domestic partnership or same-sex marriage, you should speak with a committed attorney who can explain your rights and help you protect your interests.
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Proposed California Law Would Allow a Child to Have More Than Two Parents

August 21, 2012 | by Roy M. Doppelt

The California Legislature is currently considering a bill that would allow a child to have more than two parents. Senate Bill 1476, introduced by Senator Mark Leno of San Francisco, would amend the state’s current family law statutes to allow a child to have more than two parents when it is in the best interests of the child. The proposed legislation was reportedly designed to protect kids in the event that one or both custodial parents were no longer able to care for a child. The bill has already passed the California Senate.

One example of a situation where a child would be allowed to have more than two parents under the proposed legislation includes when a child has two same-sex parents, but an egg or sperm donor has remained interested in the child’s welfare. The bill would provide that child’s biological parent with the opportunity to act as a legal parent if something happened to both of the child’s same-sex parents. Where applicable, the bill could potentially avoid sending a child to foster care. Instead, a child could be cared for by a willing biological parent. Additionally, the proposed law would require all parents to be responsible for a child’s financial support and other parental obligations.

Critics of the law believe coordinating parental decisions such as extra-curricular activities and school selection between three individuals would create unnecessary strife. Additionally, some believe the law should focus more on biological connections. According to the President of the Association of Certified Family Law Specialists, Diane Wasnicky, the aim of the bill is to be commended, but the current language is unacceptable. She believes the bill conflicts with current California law and legal precedents. Wasnicky stated the proposed legislation would also create difficulty for family law judges when apportioning child support obligations.

According to the bill’s sponsor, three other states and the District of Columbia previously passed similar legislation without creating significant legal problems. State Senator Leno said additional parents would also be required to meet a court-established definition of a parent. Additionally, he stated family law judges in California should be trusted to use their discretion based upon the individual circumstances of each case. The proposed legislation is reportedly not designed to expand the definition of a parent in California, but instead to merely eliminate the current limit of two parents in particular situations.

An adoption law expert from the University of California, Berkeley School of Law, Joan Heifetz Hollinger, stated the proposed law would affect a very small number of families. Still, she believes the law would be extremely beneficial. According to Heifetz Hollinger, it is important to remember that families in California do not “fit into a single model.”
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Supreme Court Likely to Review California Gay Marriage Ruling

June 19, 2012 | by Roy M. Doppelt

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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President Obama Announces Support For Same-Sex Marriage, No Legal Effect In California Or Elsewhere

May 10, 2012 | by Roy M. Doppelt

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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