OFFICE OF THE ATTORNEY GENERAL
Tonya A. Sapp
Director of Legislative Affairs
July 10, 2008
The Honorable Phil Mendelson, Chair
Committee on the Judiciary and Public Safety
Dear Councilmember Mendelson:
Thank you for providing OAG with the opportunity to comment on Bill 17-726: “Domestic Partnership Police and Fire Amendment Act of 2008” and Bill 17-727: “Domestic Partnership Judicial Determination of Parentage Act of 2008”. Please find below a detailed presentation of our comments or concerns about the above-noted bills.
Bill 17-726: “Domestic Partnership Police and Fire Amendment Act of 2008”
This Bill amends the District of Columbia Spouse Equity Act to give domestic partners equity in retirement benefits and the Policemen and Firemen’s Retirement and Disability Act to include domestic partners as survivors for purposes of police and fire retirements. We support this bill.
Bill 17-727: “Domestic Partnership Judicial Determination of Parentage Act of 2008”
1) A significant concern raised by the bill is that it conflicts with federal statutory requirements applicable to the District’s child support program and could therefore jeopardize federal funding for this program authorized under Title IV, Part D of the Social Security Act, approved January 4, 1975, 88 Stat. 2351, 42 U.S.C. § 651 et seq. (IV-D Program). Section 466 of the Social Security Act requires each state to enact laws requiring specific procedures governing various aspects of paternity establishment and child support establishment and enforcement. Enactment of these laws is a condition of the approval of the state’s State Plan for child support. Section 4 of the bill conflicts with section 466(f) of the Social Security Act, because it amends various definitions contained in section 101 of the Uniform Interstate Family Support Act of 1995 (UIFSA), effective February 9, 1996, D.C. Law 11-81, D.C. Official Code § 46-301.01 (2005 Repl. and 2007 Supp.), to provide for the establishment and enforcement of support obligations against domestic partners. Congress included section 466(f) in the Social Security Act to facilitate the entry and enforcement of support orders in interstate cases by ensuring uniformity of the state laws that control this process. Section 466(f) therefore requires each state to have in effect “the Uniform Interstate Family Support Act, as approved by the American Bar Association on February 9, 1993, and as in effect on August 22, 1996, including any amendments officially adopted as of such date by the National Conference of Commissioners on Uniform State Laws.” If the bill’s amendments to UIFSA were to be enacted, the 1996 version of UIFSA would no longer be in effect in the District and the bill might therefore place the District out of compliance with federal law.
2) The bill could also complicate the District’s compliance with federal child support requirements in a number of other respects. The federal IV-D Program is structured around the goal of ensuring that biological parents support their children. It therefore requires state child support agencies to use specific procedures to establish the paternity of biological fathers under circumstances where a child’s legal relationship to his or her putative father is in doubt. State child support agencies are required to petition to establish paternity in all cases where a child has no legal or custodial father and is receiving public assistance under Title IV-A of the Social Security Act, or other federal benefits and services. 42 U.S.C. § 654(4). Given the federal focus on biological parenthood, it is not clear that the presumption of parentage the bill extends to domestic partners will satisfy the federal requirement for paternity establishment, particularly in cases where the domestic partner is not or could not be related to the child. If this requirement is not satisfied, and the bill is not construed to establish the parentage of more than two individuals, federal law could require CSSD to bring legal actions to disestablish the parentage of domestic partners and establish biological paternity in contravention of the policies reflected in the bill. Further, for the purpose of assessing financial penalties and awarding incentives, the performance of state child support agencies is measured, in part, based on the state’s success in establishing paternity for children born out of wedlock. See 42 U.S.C. §§ 652(g) and 658; 45 C.F.R. §§ 305.2 and 305.40. It is unclear how OCSE will apply this requirement if the bill is enacted, particularly if multiple or unrelated individuals are presumed to be parents under the bill. Finally, the bill may impact the scope of CSSD’s obligation to provide services to individuals seeking to establish or enforce support obligations against domestic partners and the District’s ability to obtain federal reimbursement for these services. For example, federal law authorizes the child support agency to enforce certain spousal support orders, but it does not appear that CSSD could use federal funds to enforce support obligations issued on behalf of domestic partners. See 45 C.F.R. §§ 301.1 and 302.31.
3) The bill would extend the marital presumption of Section 16-909 to the persons in a registered domestic partnership. While the expansion of the marital presumption of biological parentage to domestic partners of opposite genders is consistent with the policies underlying the presumption itself, the bill would also apply the marital presumption to registered domestic partnerships involving same sex couples. It is impossible to create a presumption of biological parentage in a same sex registered domestic partnership, since at least one of the domestic partners cannot be the biological parent. Further, it is not clear that every domestic partner will want to be the presumed parent of a child to which there is no biological attachment. Under the bill, such a domestic partner would have to bring an action to disestablish parentage to avoid this result.
The bill’s impact
on the continuing validity of the District’s adoption laws should be
addressed. A statute that confers the
legal status of parent on an unrelated person is arguably inconsistent with the
requirements of Chapter 3 of Title 16 of the District of Columbia Official
Code, D.C. Official Code § 16-301 et seq.,
which, under most circumstances, requires an unrelated party to adopt the child
and the natural parent to consent to the child’s adoption before parental
rights are established. Although a
presumption of parentage created in favor of additional unrelated individuals
is unlike an adoption in that it does not appear to terminate the biological
parent’s parental rights, it does burden the natural parent’s liberty interest
in the parental relationship in a manner that might raise constitutional
concerns. Based on Troxel v. Granville, 530 U.S. 57 (2000),
it can be argued that by assigning parental status to individuals who are not
related to the child, the bill unconstitutionally interferes with the parental
rights of biological parents. If the
bill has the effect of giving children two additional parents, all four parents
would apparently have equal rights to the child’s care, custody and control,
thus forcing, for example, a biological father with custody to negotiate with
the mother’s domestic partner over decisions concerning the child’s
upbringing. Troxel suggests that there are limits on how far a legislature may
go in authorizing individuals other than natural parents to interfere with
parental decision-making. It is not
clear that the Council can avoid this constitutional objection by simply
designating the other parties as parents.
In Stanley v. Illinois, 405
5) The bill would amend section 6 of the Vital Records Act to require that the name of a domestic partner of the mother be included on a child’s birth certificate as a parent of the child if the mother was in a domestic partnership at the time of the child’s conception or birth. The bill’s amendments to the Vital Records Act may result in the designation of multiple, potentially unrelated persons as parents on officially issued birth certificates. These designations could create confusion when others attempt to rely on these documents to determine these individuals’ biological relationship with the child. Further, it is not clear how a domestic partner who is not the biological parent of a child would have his or her name removed from the child’s birth certificate upon the termination of the domestic partnership – the bill makes no provision for this contingency.
6) The historical and current purpose of a birth certificate is twofold: 1) to obtain demographic information on the health and survival rates of infants based on information on the biological parents, such as their education and race or ethnicity, the facts related to the mother’s prior pregnancies, risk factors the mother and fetus may have been exposed to, and health information about the mother’s current pregnancy; and 2) to determine who would be legally responsible for the care and protection of the child with responsibility falling, initially, on the perceived biological parents. Responsibility for the child could become that of the state, however, when a parent or parents died, the state determined that parental rights should be terminated in the best interests of the child, or the parents gave the child to the state for adoption. The facts of parentage would remain unchanged on the legal record unless another person or persons agreed to accept the legal responsibility through adoption. Even after adoption and the issuance of a new birth certificate, the original certificate is retained. Ultimately, the purpose of a birth certificate is to identify to the world who a child’s biological parents are and who, therefore, is responsible for the care of the child. Only when the biological parents are unable or unwilling to be responsible for a child is the identification of a parent changed and only if another person agrees to fill that role. Presently, a birth certificate requires no information about a parent on a birth certificate, only information about a mother and, if known, a father. There is not, in fact, a legal definition in the statute for the terms “mother” and “father”, so the Department of Health, Vital Records Division relies on the commonly understood meanings of those terms. The term “parent” was not previously used in the statute and would only appear in the proposed amendments. The bill would require changes to the birth certificate form to accommodate addition of domestic partner as a parent and would change the purpose of the certificate from a form intended to record biological information to one that records something other than biological information.
7) The bill requires the use of gender specific terms used elsewhere in the D.C. Official Code to refer to persons of any gender when necessary to implement the rights and obligations established by Title 16. This change could have implications for Acknowledgement of Paternity forms (AOP) because the change could require the listing of a female as a father or male person who is not a biological father on the AOP. Voluntary acknowledgment of paternity is done pursuant to federal law and is intended to identify fathers who are not married to the child’s mother, either on an original birth certificate or an amended birth certificate after the filing of an AOP. The purpose of the AOP is to encourage fathers to acknowledge paternal responsibilities and minimize the support that the government provides. As a global change, the bill could also have a significant impact on the process for registering births. The current birth certificate form records information about mothers and putative fathers, not husbands and wives. The bill’s proposed changes could result in the elimination of those gender specific terms, mother and father, and replacement with either different non-gender specific terms unrelated to the biological relationship of the person to the child.
8) Although the bill does not directly address how expanding the parental rights of domestic partners will affect domestic partners’ inheritance rights to or from these children, the bill amends D.C. Official Code § 16-907 to include references to children born during a domestic partnership in the definitions of children born in and out of wedlock. This amendment is significant with respect to inheritance because D.C. Official Code § 19-316 allows children born out of wedlock to inherit by intestate succession from their mothers and fathers, and other relatives, if parenthood has been established, and the bill would treat children of domestic partners as having been born in wedlock. Although the terms “mother” and “father”, as used in this section, could be construed as limiting inheritance rights to children of biological parents, the amendment arguably permits children to inherit from unrelated domestic partners, and their relatives, even after the domestic partnership has terminated. Such a broad expansion of intestate inheritance rights appears to be unusual, if not unprecedented, and would likely inspire litigation.
OAG looks forward to working
collaboratively with your office to ensure that the enacted laws best serve the
interests of the residents of the
Very truly yours,
Tonya A. Sapp
Director of Legislative Affairs
 Compliance with federal State Plan requirements is a condition for the receipt of federal funding for the child support program. 42 U.S.C. 652(a)(3); 45 C.F.R. § 301.15. In addition, non-compliance with these requirements can cause a state to lose federal public assistance funding under the Temporary Assistance for Needy Families Program. See 42 U.S.C. § 609(a)(8).
 Although OCSE has waived the requirement of enactment of the 1996 version of UIFSA for some states, it has done so to authorize its replacement with the enhanced 2001 version approved by the National Conference of Commissioners on Uniform State Laws. UIFSA 2001 is consistent with UIFSA 1996 and will likely replace UIFSA 1996 as the version subject to the federal mandate. It includes several enhancements, most notably in the area of international support enforcement. Waivers have not been issued, to our knowledge, to permit individual states to vary the scope and applicability of UIFSA’s basic substantive provisions.
 In Troxel, the U.S. Supreme Court upheld
the invalidation of a
 The bill also does not indicate whether, upon termination of a domestic partnership, an unrelated domestic partner who no longer wants to be considered a parent under the presumption of parentage created by the amendments to D.C. Official Code §16-909 must bring a legal action to achieve that result.
 D.C. Official Code § 7-210(e). Subsection (g) of this section provides that the original is kept under seal.
 The bill does not amend Title 19 of the District of Columbia Official Code to require gender-specific terms for parents to be construed to apply to persons of any gender.
 One can easily imagine a scenario under which, for example, the siblings of a decedent might challenge the rights of a child unrelated to the decedent to inherit based on the decedent’s brief domestic partnership with the child’s natural parent.