Testimony by Bob Summersgill on
“Prevention of Child Abuse and Neglect
Amendment Act of 2007,”
Bill 17-0135; and
“Domestic Partner Claim of Dead Bodies
from the Anatomical
Board Act of 2007,” Bill 17-0136.
Before the Committee on Public Safety and the Judiciary
Friday, June 29, 2007
Good
afternoon Chairman Mendelson and members of the
Committee.
My
name is Bob Summersgill. I am a District resident and the architect of the
expansion of the rights and responsibilities of D.C.’s domestic partnerships
over the past 6 years.
Thank
you for once again taking a leadership role on domestic partnership legislation
and holding this hearing.
We started the process of
expanding domestic partnerships in 2001 by taking small incremental steps. The
Congressional ban on implementing the domestic partnership law had just been
lifted. That ban had been in effect for 9 years. While they finally let us
implement our law, we still faced a fair amount of hostility on the Hill. Since
then, 11 bills have been enacted expanding the rights and responsibilities. The
most notable is your own bill the Health Care Benefits Expansion Amendment Act
of 2006, which covered the highest priority issues.
Over the past few years, the
Congress has become considerably less hostile to domestic partnerships, and
conservatives have sought domestic partnerships as an alternative to same-sex
marriage.
This is all to say that the
incremental approach that has served us so very well is no longer needed. A
final comprehensive bill is now appropriate.
The bills before us today 17-135
and 17-136 should be combined with 17-183, the Omnibus Domestic Partner Real
Property Amendment Act of 2007, and “domestic partner” or domestic partnership”
be added to the following sections of Code as appropriate.
In each case, we want to be as
gender neutral as possible since domestic partners may be of any gender, and it
is an opportunity to modernize the language. In each section below, “husband
and wife” or “spouse” would be changed to “spouse or domestic partner”. Any
reference to “widow”, “widower”, or “surviving spouse” would become “surviving
spouse or domestic partner.”
D.C. Government
Employee Benefits
Ethics
1-608.01(c)(1) Creation of Career Service
1-608.01a(c)(1) Creation of the Educational Service
1-1106.01 Election Campaigns; Lobbying; Conflict
of interest.
1-1106.02 Election Campaigns; Lobbying; Disclosure
of financial interest.
3-609 Boxing and Wrestling Commission. Liability of Commission
members.
3-1204.01 Health Occupations Boards. Qualifications of members.
3-1320. Lottery
and Charitable Games Control Board. Persons ineligible to purchase tickets or shares or
receive prizes.
3-1328 Lottery and Charitable Games Control Board. Persons ineligible for
suppliers' license.
6-211.
Retirement
1-529.01 Officers and Employees Generally. Spouse Equity. Application.
1-529.03 Officers and Employees Generally. Spouse Equity. Compliance with
court orders.
1-623.01 Definitions
1-623.33 Compensation in case of death.
1-626.04 Retirement. Definitions.
1-702
1-901.02 Police Officers, Fire Fighters, and Teachers
Retirement Benefit Replacement Plan. Definitions.
5-131.03 Performing Police Band. Retirement of
Director--Conditions; annuities.
5-701. Police and Firefighters Retirement and
Disability. Definitions.
5-716 Police and Firefighters Retirement and
Disability. Survivor benefits and annuities.
38-2021.09 Retirement of Public School
Teachers. Deferred
annuity; annuity to survivors.
38-2021.23 Retirement of Public School
Teachers. Increased
annuities for certain surviving spouses.
38-2023.02. Retirement
of Public School Teachers. Annuity for unremarried
widow or widower.
Health benefits elections for D.C.
employees
1-529.02(c) Definitions. "Qualifying court order"
1-529.03 Compliance with court orders.
1-529.04 Enrollment in health benefits
plan.
1-621.07 Election
of coverage. (This may be
moot.)
1-623.10 Augmented compensation for
dependents.
1-623.33 Compensation in case of death.
Miscellaneous
judicial concerns
2-1401.02(11B) Human Rights Act. Definition of a family.
16-1908 Habeas
Corpus. Right of other persons to writ
16-2388(e) Family Division Proceedings.
Adjudicatory hearings
19-1106 Multiple
beneficiaries; separate custodial trusts; survivorship.
22-501 Bigamy
22-1403 False personation before court, officers, notaries.
23-547 Procedure for authorization or
approval of interception of wire or oral communications. (Spousal
Immunity from Testimony)
Hospitalization
of the mentally ill
7-1231.13 Retention of civil rights.
21-512 Release of voluntary patients.
21-522 Examination
and admission to hospital; notice.
21-527 Examination and release of person; notice.
21-565 Statement of release and adjudication procedures and of
other rights.
21-582 Petitions,
applications, or certificates of physicians or qualified psychologists.
21-586 Financial responsibility for care of hospitalized
persons; judicial enforcement.
Miscellaneous health care issues
7-622
Death, relationship of the
witness
7-1601 AIDS
Health Care
21-2208 Health-care
Decisions. Revocation.
31-3303.07
Health insurance portability and
accountability
31-4712. Individual accident and sickness
policies.
32-1501 Workers’ compensation. Definitions.
32-1504.
Exclusiveness of liability and
remedy.
32-1508. Compensation
for disability.
44-1002.05. Nursing Homes and Community Residence
Facilities Protections. Appointment of receiver; continuation
of ex parte appointment.
The following sections should be
handled carefully. Professor Nancy Polikoff has offered the following
suggestions in navigating these very technical issues. Attorney Michelle Zavos
and Shannon Minter have also reviewed the sections. I will defer to their
expert opinion.
Birth
registration/Parent child relationships
Amend 7-205:
(c )(3) to add after “mother,” “domestic partner of mother”
(e)(2) to add
after “married,” “or in a domestic partnership” and after husband “or domestic
partner.” To strike
“father” and replace with “other parent.” (Or add after father “or other
parent”)
(e)(3) to add
after “married,” “and was not in a domestic partnership” and after father “or
domestic partner.” To
strike “father” and replace with “other parent” in two places. (Or add
after father “or other parent”)
16-907. Parent and child relationship
defined.
Should be amended to read:
(a) The term "legitimate" or
"legitimated" means that the parent-child relationship exists for all
rights, privileges, duties, and obligations under the laws of the
(b) The term "born out of
wedlock" solely describes the circumstances that a child has been born to
parents who, at the time of its birth, were not married to each other or in a
domestic partnership with each other.
The term "born in wedlock" solely describes the circumstances
that a child has been born to parents who, at the time of its birth, were
married to each other or in a domestic partnership with each other.
(c )Where necessary to implement the rights and
obligations established by this title, gender-specific terms for parents shall
be construed to apply to persons of any gender.
16-908
Replace “father and mother” with
“parents” and “father’s and mother’s” with “parents’”.
16-909. Proof of
child's relationship to mother and father.
Should be amended to read:
(a) A child's relationship to its
mother is established by its birth to her. A child's relationship to its father
is established by proving by a preponderance of evidence that he is the father,
and there shall be a presumption that he is the father:
(1) if he and the child's mother are
or have been married and the child is born during the marriage, or within 300
days after the termination of marital cohabitation by reason of death,
annulment, divorce, or separation ordered by a court; or
(2) if, prior to the child's birth, he
and the child's mother have attempted to marry, and some form of marriage has
been performed in apparent compliance with law, though such attempted marriage
is or might be declared void for any reason, and the child is born during such
attempted marriage, or within 300 days after the termination of such attempted
marital cohabitation by reason of death, annulment, divorce, or separation
ordered by a court; or
(3)
if, after the child's birth, he and the child's mother marry or attempt to
marry, (with the attempt involving some form of marriage ceremony that has been
performed in apparent compliance with law), though such attempted marriage is
or might be declared void for any reason, and he has acknowledged the child to
be his; or
(4) if the
putative father has acknowledged paternity in writing.
(b) If questioned, a presumption
created by section 16-909(a)(1) through (4) may be
overcome upon proof by clear and convincing evidence that the presumed father
is not the child's father. The Superior Court shall try the question of
paternity and shall determine whether the presumed father is or is not the
father of the child.
(b-1) A
conclusive presumption of paternity shall be created:
(1) Upon a result and an affidavit
from a laboratory of a genetic test of a type generally acknowledged as
reliable by accreditation bodies designated by the Secretary of the U.S.
Department of Health and Human Services that is performed by a laboratory
approved by such a body indicating a 99% probability that the putative father
is the father of the child; or
(2) If the father has acknowledged
paternity in writing as provided in section 16-909.01(a)(1).
(c) The parent-child relationship
shall be conclusively established:
(1) Upon a determination of the
parentage of a child by the following:
(A) The Superior Court of the
(B) Any other court of competent
jurisdiction;
(C) The IV-D agency of another state,
in compliance with jurisdictional and procedural requirements of that state; or
(D) Any entity of another state
authorized to determine parentage, in compliance with jurisdictional and
procedural requirements of that state;
(2) By a voluntary acknowledgment of
paternity pursuant to section 16- 909.01(a)(1), unless
either signatory rescinds the acknowledgment pursuant to section
16-909.01(a-1); or
(3) By a voluntary acknowledgment of
paternity in another state pursuant to the laws and procedures of that state,
unless either signatory rescinds the acknowledgment pursuant to the laws and
procedures of that state.
(c-1) A
parent-child relationship that has been established pursuant to subsection (b-1)(1) of this section may be challenged upon the same grounds
and through the same procedures as are applicable to a final judgment of the
Superior Court. A parent-child relationship that has been established pursuant
to subsection (b-1)(2) of this section or section
16-909.01(a)(1) may be challenged in the Superior Court after the rescission
period provided by section 16-909.01(a-1) through the same procedures as are
applicable to a final judgment of the Superior Court, but only on the basis of
fraud, duress, or material mistake of fact, with the burden of proof upon the
challenging party. The legal responsibilities (including child support
obligations) of any signatory arising from the acknowledgment of parentage may
not be suspended during the challenge, except for good cause shown.
(d) The parent-child relationship
between an adoptive parent and a child may be established conclusively by proof
of adoption.
(e) A parent-child relationship is
established between a child and both persons in a domestic partnership on the
same basis available to both persons in a marriage.
(f) (i) A person who consents to the artificial
insemination of a woman as provided in subsection (ii) or (iii) with the intent
to be the parent of her child, is a parent of the resulting child.
(ii)
Consent by a woman, and a person who intends to be a parent of a child
born to the woman by artificial insemination must be in a writing signed by the
woman and the intended parent.
(iii)
Failure of a person to sign a consent required
by subsection (ii), before or after the birth of the child, does not preclude a
finding of intent to be the parent of the child if the woman and the person
resided together in the same household with the child and openly held the child
out as their own.
(iv)
A donor of semen to a person other than the donor’s spouse or
domestic partner is not a parent of a child thereby conceived unless the donor
and the person agree in writing that said donor shall be a parent.
16-2345
Amend to add after “marriage
certificate” “or certificate of domestic partnership” and after “intermarried”
add “”or entered into a domestic partnership”
28-4804.13
Add “or domestic partner” after spouse
where ever it appears.
46.301.01
(4) add after
“spouse” “domestic partner” and after “former spouse” “or former domestic
partner”
(21) same as
in (4)
(24) add
after “spouse” “a domestic partner” and after “former spouse” “or a former
domestic partner.”
46.303.16
(h) after
“spouses” add “or between domestic partners”
(i) after “wife or” add “domestic partner or”
Dr. Polikoff also offers the following section for consideration and
inclusion in the legislation.
Stepparents and stepchildren
The
relationship of stepparent, stepchild, stepbrother, and stepsister, is
typically created when a child’s parent marries someone who is not also the
child’s parent. The definition of these “step” relationships should be expanded
to include the relationship created when a child’s parent enters a domestic
partnership.
Below
is a list of all statutes in the D.C. Code that refer to “step”
relationships. The following definitions
should be added:
“Stepparent”
includes, with respect to a particular child, a person who is not the child’s
parent and who is the domestic partner of one of the child’s parents.
“Stepchild”
includes, with respect to a particular adult who is not the child’s parent, a
child whose parent is the domestic partner of that adult.
When
the relationships names stepbrothers and stepsisters there needs to be a way to
capture those whose parents are in a domestic partnership with each other on
the same terms as those whose parents are married. I have not drafted this
language. Perhaps there is an overall definition of “step” relationships that
can be used for all of these.
The
following statutes refer to “step” relationships and need a definition added
somewhere to encompass the children of one’s domestic partner.
Please
note that due to time limitations, subsection numbers are not always listed.
Many
of these statutes also refer to marriage, spouse, husband, wife, widow, and
widower without referring to domestic partners. Statutes that need to be
amended to add domestic partners as well as step-relationships are marked with
an asterisk (*)
1-621.03*
1-622.04*
1-623.01*
2-1542*
4-401*
4-201.01*
4-501*
5-701*
5-113.31
11-1561*
16-916.01
19-1101*
21-301*
24-251.03*
32-1501*
36-303.05*
38-301
38-1800.02
38-2021.09, § 38-2021.10*
51-101*
The sections on adoption should be amended, but I defer entirely to Dr.
Polikoff and her colleagues on how to accomplish that.
A few sections that should be updated to
change “husband or wife” to spouse, and “widow” or “widower” to
“surviving spouse”. Domestic partners do not need to be added to these
sections, or already have been added. This is language modernization to make
the language in the Code more consistent and gender neutral.
1-607.03 Veterans
preference in employment.
16-904 Grounds
for divorce, legal separation, and annulment.
31-4330 Contractual
rights of minors
42-1102(7) Deeds
exempt from tax.
42-3404.02(c)(2)(B) Tenant opportunity to purchase;
"sale" defined.
42-3503.03(e)(2) Tenant Assistance Program
47-902 Enumeration
of transfers exempt from tax.
There
are three additions and corrections to the D.C. Code that should be added to
this legislation.
First, in the Domestic Partner
Health Care Benefits Tax Exemption Act of 2005, Health care premiums for a
domestic partner were exempted from gross income. Healthcare benefits for other
family members are already exempted under Federal tax law. Unfortunately, we
over looked a private employer that is self-insured. In that case, it would not
be a premium, and the benefit is still taxable under a strict reading of the
Code. This was unintentional.
Section 47-1803.02(a)
(2) The following items shall be
excluded in the computation of District gross income:
(W) The amount of any health care
insurance premium paid by an employer for a non-employee domestic partner, as
the term "domestic partner" is defined in § 32-701(3).
At least one employer,
Second, we
should recognize domestic partnerships, civil unions and similar legal
relationships like from other jurisdictions. I recommend a new paragraph
in the chapter on establishing domestic partnerships:
§ 32-702. Domestic partnership
registration and termination procedures
(i) Legal
relationships substantially similar to domestic partnerships defined in this
chapter from other jurisdictions are recognized as domestic partnerships in the
District.
The language
needs to be broad and somewhat vague because the terminology varies from state
to state and country to country. Benefits also vary from jurisdiction to
jurisdiction and the list of jurisdictions changes frequently. With the passage
of this expanded bill, D.C. would have essentially the same rights and
responsibilities for both domestic partnerships and marriage. That high
standard is what we should use for evaluating recognition of other
jurisdictions’ laws. This is similar to what other jurisdictions do, including
The proposed
language should cover civil unions from
European
countries have a variety of names for statutory non-marriage relationships
which should be recognized including:
·
·
o
·
·
·
·
·
·
·
·
·
·
·
·
Recognition of same-sex marriage from
Third, when the
original Health Care Benefits Expansion Act of 1992 was written, there was not
a concern to the legal status of domestic partners who subsequently get
married. Domestic partners may not also be married, but we don’t want to put
couples in a position of having to wait six months for the dissolution of their
domestic partnership before they can get married to each other or potentially
face criminal charges of bigamy, as odd as that sounds. The marriage should end
the domestic partnership at the same time, without penalty. Marrying someone
else should still be illegal if you haven’t terminated the domestic
partnership. Since it is unclear whether or not D.C. recognizes same-sex
marriages from other jurisdictions, domestic partners that have also married in
§ 32-702. Domestic partnership
registration and termination procedures
(J) A domestic partnership is
terminated when a couple who are registered domestic
partners marry each other.
Thank you. I am available for any
questions that you may have.
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