Waldlaw Blog

Thursday, August 29, 2013

Today's Marriage Recognition Rulings (UPDATED 8/30)

In a press release issued today, the IRS has let it be known that all marriages of same-sex couples will be honored by our federal government for tax purposes, as long as the marriages were validly entered into by the law of the place of celebration.  What this means, in practical terms, is that a same-sex couple that marries in any of the states where such marriages are legal will be treated by the IRS as married, regardless of where they live. 

So, for example, my friends who live in Florida but married in Vermont this summer are now considered married by the IRS, even though Florida does not recognize their marriage.  They will need to file their federal taxes as either "married filing jointly" or "married filing separately," while presumably continuing to file their state taxes as single.

Domestic partnerships and civil unions will not be treated as marriages by the IRS.

In a companion ruling, which will be extremely helpful to married gay elders, Health and Human Services has issued its determination today that they will be using the "place of celebration" rule for Medicare.  Among other things, this will assist gay seniors enrolled in a Medicare Advantage plan.  Medicare beneficiaries enrolled in Medicare Advantage plans are entitled to care in the same skilled nursing facility where their spouse resides (assuming they meet the conditions for skilled nursing facility coverage and other Medicare requirements).  Gay seniors with Medicare Advantage had previously faced the challenge of being placed in skilled nursing facilities away from their spouses, given the non-recognition of their marriages.  This will no longer be the case.

UPDATE 8/30/2013:

A colleague in Virginia reports this morning that she has spoken with a supervisor at the Virginia Department of Taxation, who informed her that married same-sex couples in Virginia will be expected to file their Virginia state tax returns as "married filing jointly" or "married fling separately" regardless of Virginia's strong public policy against recognizing the marriages of same-sex couples.  The reason: Virginia, like many states, has a state law requiring Virginia residents to file their state taxes in the same manner as their federal taxes.  So filing state taxes as "single" and federal taxes as "married" would violate Virginia's state tax laws.

Many historically conservative states (e.g. Ohio) have comparable tax laws, so it will be interesting to see how this plays out.  For now, same-sex married couples living in non-recognition states will need to check their state tax codes - or consult with knowledgeable tax attorneys or CPA's - to make sure they are filing correctly.

Wednesday, August 14, 2013

Why I Support California's SB 115

The current controversy over California's Senate Bill 115, an "act to amend section 7630 of the California Family Code relating to parent and child relationships," has forced me to revisit a sad chapter in the history of California parentage law.

Up until 2005, when a lesbian couple had a child together in California only the biological mother was considered a parent.  Many of us who practiced family law in the LGBT community prior to 2005 still are recovering from the PTSD inflicted by standing next to devoted non-biological lesbian mothers while they were told by courts that they lacked standing to pursue continued relationships with the children they had loved and parented from birth.

The most notorious of these cases was Nancy S. v. Michele G..  I recommend that anyone participating in the current debate over SB 115 -- which revolves around the question of whether a sperm donor who goes on to establish a bonded parental relationship with his donor offspring should have legal standing to pursue rights as a father -- read the Nancy S. decision and the story of what ultimately happened to those children.  I will provide a short version of that story here:

Nancy S. was an Alameda County case involving a lesbian couple who had been together for over 10 years when their first child, Kate, was born.  Nancy gave birth to Kate, and then four years later to Micah.  When Micah was only 6 months old, the couple broke up and Nancy moved out of the family home.  The two women shared custody for the next 3 years, with Kate living primarily with Michele and Micah living primarily with Nancy and the children visiting between the homes so that they were together several days per week.  And then, one day when Kate was 8 years old, Nancy pulled her out of school and told her that Michele was no longer her mom.  The same afternoon, Michele was served with a restraining order keeping her away from both children.

A brutal court battle ensued, and ultimately Nancy "won" and Michele was found not to have standing to pursue even visitation with the children she had raised with Nancy from birth.  However, the separation from Michele caused Kate to suffer from a clinical depression that ultimately alarmed Nancy to the extent that Nancy allowed Kate to go home to Michele.  Nancy subsequently moved with Micah to Oklahoma, to join a woman there with whom she had fallen in love.  In July, 1997 -- when Kate was 17 and Micah was 13 -- a tanker truck smashed into the car Nancy was driving, killing her on impact and causing Micah to be airlifted to a hospital.  When he regained consciousness, he was asked who his father was.  His response that he didn't have a father but did have another mother was met with resistance, and he was on his way to foster care when a sympathetic hospital employee intervened.  Ultimately, with support from Nancy's family, Michele was able to obtain an emergency guardianship and bring Micah home to California, to rejoin her and his sister.  For those of us who knew this family -- or knew the case -- we vowed that we would do whatever we could to assure that no child would ever again have to go through what Kate and Micah went through because of the courts' refusal to recognize a parent as a parent.

A few weeks ago, I had a consultation with a prospective client.  For purposes of this writing, I will call him Antonio.  (I am also changing enough details here to assure his confidentiality.)  Antonio is from Brazil, but has long resided in Contra Costa County.  He has a 10 year old daughter that he has raised with the child's mother from birth.  Antonio and the child's mother were in a committed relationship for years but never married, and were unable to conceive without medical assistance.  The child was conceived by intra-uterine insemination.  Thus, technically speaking, Antonio is a man who provided his sperm to a physician for purposes of inseminating a woman who was not Antonio's wife.  He is, by strict application of California's Family Code section 7613(b), a sperm donor.

Antonio has been co-parenting his daughter for the past 10 years.  He was present at her birth and at her christening, has been her primary financial support since birth, paying for her clothes and childcare and camps and school, and she has spent at least a couple of nights every week in his home since she stopped nursing.  Each summer, he has taken her to Brazil for an extended vacation so she would know his language and culture and have a meaningful relationship with his family there.  He is, in every sense, her dad.

Antonio and his daughter's mother are having an escalating disagreement about the best time share arrangement for this child.  They are arguing about where she should sleep on school nights, versus where she should sleep on the weekends.  They are arguing about how long her trip to Brazil should be this summer.  Antonio came to me asking me to help him understand what his options were for obtaining a custody order that would allow him and his daughter to have security and predictability in their time together.

I had to tell Antonio that -- given the current kerfuffle over SB 115 -- if he filed a custody action and his daughter's mother went to the wrong attorney, he could be faced with a motion to dismiss his custody action for lack of standing -- he could be faced with an argument that he has no right to any future contact with his daughter because he is "just a sperm donor."  For the first time in many years, I found myself reliving the trauma of Nancy S..

I honestly thought that we were past the time, in California, when children were at risk of losing a long time devoted parental figure based on rigid application of our statutes without consideration for the fall-out to the child.  As I read our statutes and our case law, and based on my own experience representing non-biological parents in California trial courts, California courts have been empowered for almost a decade to consider the children's perspective when they figure out which adult figures are legal parents and which are not.  But when you read the reactions of some commentators and practitioners to SB 115, you would think that the idea that courts should try to honor children's actual experiences of who their parents are was outrageous.  I am left scratching my head.