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 firstname.lastname@example.org.