Taking a Sabbatical from Blogging

As any observant followers may have noticed, I have not blogged since November 2013.  I keep meaning to start up again -- heaven knows there are weekly events and incidents worth blogging about -- but I just never find the time.  So I am taking a sabbatical from blogging.  I continue to keep my website updated, as well as writing articles and speaking publicly at various venues.  I look forward to communicating with all of you in other ways.

Happy Thanksgiving from Waldlaw

Just a quick note to wish my readers a belated Happy Thanksgiving!  I have been trying to soak in the peace and quiet after a very hectic November, and hope you all also are enjoying the opportunity to relax with loved ones over this long holiday weekend. 

And, for all my Jewish friends and family members, a Happy Hanukkah to boot!

2013 has been a fascinating year from a family law perspective.  I will take time in December to digest what I see as the top stories of this calendar year.  In the meantime, best wishes to you and yours as we dive into the holiday season.

The Miller-McKenna Custody Battle and the Rights of Pregnant Women

My dear friend Maggie Geddes, employment lawyer extraordinaire, sent me a note this morning about an article she saw in today's New York Times.  Although I had not previously been aware of the Miller-McKenna case discussed in the article, it fits right into an area of family law in which I have been taking an interest for some time: the special issues that come with unintended procreation by people who have no commitment to each other.  I recently wrote an article on this topic for the AFCC-CA Newsletter.

In the Miller-McKenna case, a single woman (McKenna) and a single man (Miller) met through a professional matchmaking service.  They only dated for a few months, but McKenna ended up pregnant.  A former marine and active firefighter, McKenna made the decision while pregnant to relocate from California to New York to pursue her education at Columbia University. 

Finding that McKenna had "absconded" with the fetus, a New York trial court transferred custody from McKenna to Miller, who flew to New York to take the baby from McKenna in September, when the baby was 7 months old.  Now, an appellate court has reversed that ruling, instead finding that a pregnant woman has a constitutional right to travel -- including the right to relocate -- regardless of the location of the baby-to-be's father.

As with so many of these cases, there is a theme in the Miller-McKenna case of the father having suggested terminating the pregnancy; the mother having decided against getting an abortion; and the mother then taking the position that -- since the father didn't want the baby to begin with -- he should not have any say in the baby's life.  But this case raises another issue -- the rights of women to be treated as people with lives and goals and aspirations, and not just as wombs.  McKenna was offered the opportunity of a lifetime -- the chance to get a degree from Columbia University.  The thought that she should have turned down that opportunity because she was pregnant with the baby of a man with whom she did not have a meaningful relationship, and who did not want a relationship with her, is pretty outrageous. 

This case is distinguishable from the much more complex (and much more common) relocation cases where a woman wants to move after a child has been born and established a meaningful attachment to its father.  In those cases, the move has the potential to sever -- or at least severely erode -- a bond that already exists, to the child's presumptive detriment.  Courts have recognized that even in these cases, the woman has a constitutional right to move -- the issue for the court is whether she gets to take the child with her, or whether the child should remain behind with its father.  But where the child is not yet born, there is no issue of severing an established bond, the woman's constitutional right to move on with her life must control, and her decision to do so should not be held against her in subsequent custody proceedings.

Reporting Back from the AAARTA/ABA Conference in Charleston

I spent most of this past week at a conference on cross-border assisted reproduction, co-sponsored by the American Academy of Assisted Reproductive Technology Attorneys (AAARTA) and the Assisted Reproductive Technology Committee of the American Bar Association (ABA).  The conference was attended by over 250 attorneys from around the world, including England, Germany, Spain, France, Australia, Argentina and the Hague (Netherlands). 

Several things became clear during the conference: (1) there is a growing body of very dedicated and talented attorneys around the world who are committed to practicing assisted reproductive law at a high level (that's the good news); (2) there is no consensus among the various countries on what ART practices are ethical or legal (that's the not-so-good news); and, therefore, (3) attorneys from the different countries need to work closely together to assure that individuals and couples engaging in cross-border assisted reproduction fully understand the legal complexities of their ART journeys.  To this end, it was wonderful not only to sit and listen to many thoughtful and detailed presentations on international ART law, but also to spend time socializing with and getting to know personally the top ART attorneys from the many countries represented at the conference. 

My take-away from this conference is a heightened conviction that no family should be engaging in cross-border ART without having consulted with skilled and experienced attorneys on both sides of the borders they are crossing.  Happily, having been practicing international ART law for many years now -- and having had the opportunity to deepen my relationships with many wonderful attorneys from across the globe this week -- I have excellent attorneys in many countries to whom I can refer my clients who are in need of their services.

International assisted reproduction law is about as cutting edge an area of law as there is.  I return from Charleston, South Carolina feeling privileged to be practicing law in this arena, surrounded by such a thoughtful and talented group of colleagues.

Governor Brown Signs Multi-Parent Bill

Just a few minutes ago, California Governor Jerry Brown signed into law a bill that I have worked on for the past two years, alongside the National Center for Lesbian Rights and the Children's Advocacy Institute at the University of San Diego School of Law.  The bill, SB 274, will allow California courts to protect children who have established relationships with more than two parents from arbitrarily losing the love and support they rely on.

Here is a typical case where this bill will make a difference:  a married couple has a child.  They break up when the child is very young, and in the divorce the mother is awarded full physical and legal custody of the child.  The father is only minimally involved in the child's life from that point forward -- but he does pay some child support, and visits with the child on special occasions.  In the meantime, the woman becomes involved with another man but -- having been through a divorce once already and hated the experience, and not wanting to jeopardize the financial support she and the child are receiving from the child's father -- she and her new partner never marry. 

The new partner -- lets call him Frank -- assumes a parenting role for the child and as the years pass he becomes the child's primary parental figure.  He puts her to bed every night after he gets home from work and they spend hours together every weekend, going for hikes and playing catch and reading books.  Frank introduces the child to everyone as his daughter and she comes to know his parents as her grandparents.  The child looks to Frank for the love and support and stability that children need from their parents. 

Mom gradually comes to resent how close the child and Frank have become and, after the three have lived together as a family for 4 years, she breaks up with Frank.  Frank does everything he can to convince her to honor the relationship Frank has established with the child, but she responds that the child has a mother and a father and they don't need Frank any more.  She cuts off all contact between Frank and the child.

Until today, many family law courts in California would have said that there was nothing they could do to protect this child's relationship with Frank.  Even though Frank clearly would qualify as a "presumed parent" under current California law -- because he received the child into his home and openly held her out to others as his daughter -- the "mother" and "father" slots both were already filled.  Since Frank and the child's mother never married, Frank is not a stepfather -- so without SB 274, he is legally a stranger to this child, no matter how tightly bonded they are. 

But now, a court can take a long look at situations like the one described above and make a determination whether it would be detrimental to this child to lose her bonded parent-child relationship with Frank and, if the court determines that it would be, the court can recognize this child's mother, father and Frank all as legal parents.

Today is a great day for California's children and the people who love them.

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.

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.