Testimony by Nancy D. Polikoff on
“Domestic Partnership Judicial Determination of Parentage Act of 2008” Bill 17-727”
Friday, July 11, 2008
My name is Nancy D. Polikoff. I am a Professor of Law at American University Washington College of Law, where I have taught Family Law for more than 20 years. I also teach Sexuality and the Law. Formerly, I supervised family law programs at the Women’s Legal Defense Fund (now the National Partnership for Women and Families) and before that I was in private practice. I have been a D.C. resident for more than 35 years, and I have been a member of the District of Columbia Bar since 1975. I was a member of the Steering Committee of the Family Law Section of the D.C. Bar from 1986-1988, and I was appointed to the District of Columbia Superior Court Child Support Guidelines Committee by former Chief Judge H. Carl Moultrie and served on that committee from 1985-1990.
I was the attorney for the
first same-sex couple to obtain a “second-parent adoption” in the
Today I offer my strong
support for Bill 17-727, with a few recommendations for changes. This bill is important because it brings
These provisions plus others
in the bill will further the best interests of children of same-sex
partners. They will ensure that those
children have the financial and emotional security that comes with legally
certain parental relationships. This Committee might have seen last week’s
Washington Post editorial (July 5, 2008) praising the decision of the Social
Security Administration to grant benefits to the child of a same-sex couple
when her non-biological mother became disabled. The child received the benefits
This legislation furthers two important principles that I strongly support. Those principles are: 1) the law should treat children born to registered domestic partners identically to the way it treats children born to married couples; and 2) the law should treat children born to unregistered domestic partners identically to the way it treats children born to heterosexual couples who are not married.
The changes and additions I propose to this bill, therefore, are offered in the spirit of complete support for the aims of the bill.
I. Bill 17-727 Section 2
The provisions of Section 2, amending Title 16 of the DC Code, are critical and necessary. Taken together, they 1) define parent-child relationships in a way that equalizes the status of children born to registered domestic partners and married couples, 2) recognize that a child can have two parents of the same gender, and 3) clarify parentage when a child is born as a result of donor insemination.
I support them with the following suggestions, and I also suggest one additional amendment to Title 16.
A. Amending DC Code §16-907
Both proposed changes to DC Code §16-907 are critical. As a technical matter, the amendment to subsection (b) [page 1, lines 21 and 22] that adds “,or in a domestic partnership with,” after “married to” must be repeated in both sentences of that subsection. The current bill does not make this clear. I suggest altering Bill 17-727 Section 2(a)(1) to read:
Subsection (b) is amended by inserting after both uses of the phrase “married to” the phrase “,or in a domestic partnership with,”;
B. Amending DC Code §16-908
Section 2(b) amends DC Code §16-908
to guarantee that a child is the legitimate child of its parents regardless of
the gender of those parents. It unnecessarily inserts a new phrase, “born in
(b) Section 16-908 is amended to read as follows: “A child, whether born in or out of wedlock, is the legitimate child of its parents and is the legitimate relative of its parents relatives by blood or adoption and entitled to all rights, privileges, duties, and obligations under the laws of the
District of Columbia.”.
C. Amending DC Code §16-909
1. Because the new DC Code §16-909 will establish parentage for same-sex as well as different-sex parents, the name of this Code section should be amended to replace “mother and father” with “parents.” It would read as follows:
§16-909 Proof of child’s relationship to parents
2. The bill adds to DC Code §16-909 the important presumption, analogous to the marital presumption, that the domestic partner of a woman who bears a child is a parent of the child. The current law allows a husband to rebut the presumption with proof by clear and convincing evidence that he is not the child’s biological father. Since a domestic partner of the same sex is unlikely to be the child’s biological parent, the statute should provide a standard for rebutting the presumption of parenthood. This will produce the right result if, for example, the couple separates but has not yet dissolved their domestic partnership when one partner becomes pregnant or if a partner has sexual intercourse outside of the partnership resulting in pregnancy.
I therefore propose adding the following sentence to Bill 17-727 Section 2(c) [page 2, lines 11 and 12]
“(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. If questioned, the presumption that a child born to one domestic partner is the child of both partners may be overcome upon proof by clear and convincing evidence both that the presumed parent did not intend to become a parent, and that the presumed parent did not hold himself or herself out as a parent, of the child.”
3. Some provisions in DC Code §16-909 refer to “conclusively” establishing parentage. To ensure consistency of meaning, the new section in this bill that clarifies parentage when a child is born using artificial insemination, §16-909(f), should also use this language. This can be done by adding language as follows [page 2, lines 13-15]:
“(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 conclusively established as a parent of the resulting child.”
D. Amending DC Code §16-2345
I propose an addition to this bill, amending DC Code §16-2345, the statute that allows parents to obtain a new birth certificate listing both of their names if the original birth certificate named only one parent. The parents can obtain a new birth certificate now if the biological father signs a voluntary acknowledgement of paternity. The amendment would authorize a new birth certificate upon the filing of a consent to parent a child born by artificial insemination pursuant to DC Code §16-909(f)(ii).
While ideally the written consent would be in place at the time of the child’s birth and therefore both names would appear on the original birth certificate (pursuant to the changes to Title 7 of the DC Code, discussed below), it is inevitable that in some instances only the name of the woman giving birth to the child will be on the original birth certificate. This amendment will allow for correction of the record to name both parents on the birth certificate.
The amended statute would read as follows:
§16-2345. New birth record upon marriage or determination of parents.
(a) When a certified copy of a marriage certificate is submitted to the Registrar, establishing that the previously unwed parents of a child born out of wedlock have intermarried subsequent to the birth of the child, and the parentage of the child has been judicially determined or acknowledged by each of the parents, or when the parenthood of a child born out of wedlock has been established by judicial process or by acknowledgement by the person whose parenthood is thus determined, or when an agreement and affidavit that meet the requirements of section 16-909.01(a)(2) are submitted to the Registrar, or when a consent to parent a child born by artificial insemination pursuant to DC Code §16-909(f)(ii) is submitted to the Registrar, a new certificate of birth bearing the original date of birth and the names of both parents shall be issued and substituted for the certificate of birth then on file. The new birth certificate shall nowhere on its face show that the parentage has been established by judicial process or by acknowledgement. The original certificate of birth and all papers pertaining to the issuance of the new certificate shall be placed under seal and opened for inspection only upon order of the Family Division.
II. Bill 17-727 Section 6
I turn my testimony now to Section 6 of the bill concerning vital records, including birth certificates.
A. Amending DC Code §7-201
1. I recommend deleting Section 6(a) of the bill which adds a definition of “parent” to DC Code §7-201, the “Definitions” section of the Vital Records section of Title 7 [page 4, lines 2-5]. No definition of “parent” exists currently in this section and none is needed. There are more ways of becoming a parent under DC law than those contained in the proposed definition in Section 6(a) of Bill 17-727. As discussed above, Section 2 of this bill amends DC Code §16-909 to establish parentage for children born to domestic partners and children conceived through donor insemination. If the Committee feels strongly that “parent” should be defined, it should be done by defining “parent” as “a person who is a parent under DC Code §16-909”, as that is the section of the DC Code that establishes who is a parent of a child.
2. I also recommend adding a definition of “domestic partner” and “domestic partnership” to this section, as subsequent amendments refers to domestic partners and it is not currently defined in chapter 2 of Title 7 of the Code. This can be done using the standard definition that refers to DC Code §32-701.
B. Amending DC Code §7-205(e)(2) and (3)
Section 6(b) of the bill contains two amendments to DC Code §7-205(e) concerning the names of parents and child on a birth certificate. I support the thrust of these changes because they will allow same-sex couples to accurately record their names as parents and to select a name for their child within the same parameters now available to heterosexual couples.
I do, however, suggest some drafting changes that I believe will make the legislation clearer.
1. Section 6(b)(2)(A) of the Bill amends DC Code §7-205. DC Code §7-205(e)(2) currently reads:
If the mother was married at the time of either conception or birth, or between conception and birth, the name of the husband shall be entered on the certificate as the father of the child, unless parentage has been determined otherwise by the Court pursuant to § 16-909;
In keeping with this Committee’s ongoing project of using the gender neutral term, “spouse,” rather than the gendered terms of “husband” and “wife,” I suggest amending this subsection so that it reads as follows:
If the mother was married at the time of either conception or birth, or between conception and birth, the name of the spouse shall be entered on the certificate as a parent of the child, unless parentage has been determined otherwise by the Court pursuant to § 16-909;
2. Bill 17-727 proposes a new section (2A) to address a mother in a domestic partnership. While the first sentence of the proposed new section closely tracks the current section (2) above [page 4, lines 13-15], the subsequent sentence is unclear and confusing. Since I believe its intent is to assure that the parents of a child born through donor insemination are accurately recorded on the birth certificate – and I strongly support such a provision – I suggest the following changes.
The new section DC Code §7-205(e)(2A) should read as follows:
If the mother was in a domestic partnership at the time of either conception or birth, or between conception and birth, the name of the domestic partner shall be entered on the certificate as a parent of the child, unless parentage has been determined otherwise by the Court pursuant to §16-909;
The additional sentence on page 4, lines 15 and 16 of the bill is confusing and should be omitted. In its place, I propose an amendment to DC Code Section §7-205(e)(3) that I believe addresses the circumstances contemplated by this sentence.
3. Section §7-205(e)(3) currently addresses the names that go on a birth certificate if the mother is not married. For heterosexual couples who conceive naturally, the name of the biological father appears on the birth certificate if he signs a voluntary acknowledgement of paternity. The analogy to this voluntary acknowledgement for a couple who conceives using donor semen is the writing contemplated in Section 2(c) of this bill creating a new subsection of DC Code §16-909(f)(ii). That subsection requires a signed writing between a woman and a person who intends to be a parent of the child conceived using donor semen.
Therefore, I urge that DC Code §7-205(e)(3) be rewritten as follows:
(3) If the mother was not married, and was not in a domestic partnership, at the time of either conception or birth, or between conception and birth, the name of the other parent shall only be entered on the certificate if the parents have signed a voluntary acknowledgment of paternity pursuant to § 16-909.1(a)(1) (or pursuant to the laws and procedures of another state in which the voluntary acknowledgment was signed), or if the parents have signed a consent to parent a child born by artificial insemination pursuant to 16-909(f)(ii), or a court or administrative agency of competent jurisdiction has adjudicated as the other parent the person to be named as the other parent on the certificate;
C. Amending DC Code §7-205(e)(5)
DC Code §7-205(e)(5) identifies the surnames that parents can give to their child. While Bill 17-727 adds the surname of the domestic partner as a possible surname for the child [page 4, lines 18 and 19], it omits the surname of a parent of a child conceived through donor insemination pursuant to DC Code §16-909(f). The purpose of §7-205(e)(5) is to give parents some flexibility with surnames but also ensure that the child’s surname has a connection to at least one parent’s surname. I propose a small change to the language in the current bill. It replaces “mother, father, or domestic partner” with “a parent whose name appears on the birth certificate.”
(5) The surname of the child shall be the surname of a parent whose name appears on the certificate, recorded in any order or in hyphenated or unhyphenated form, or any surname to which either parent has a familial connection. If the chosen surname is not that of a parent, or a combination of all or part of both surnames, the parents shall provide an affidavit stating that the chosen surname was or is the surname of a past of current relative or has some other clearly stated familial connection. Submission of an affidavit containing false information shall be punishable under § 7-225.
III. Recommendation for new section giving judges discretion to waive an adoption home study
To make this legislation as comprehensive as possible in addressing the circumstances of same-sex couples raising children, one amendment to the adoption statutes is necessary, and I urge the committee to include it in this bill.
DC Code §16-308 gives a judge the discretion to dispense with an adoption home study when the adopting parent is married to the child’s parent. It reads as follows:
§ 16-308. Investigations when prospective adoptee is adult or petitioner is spouse of natural parent
The court may dispense with the investigation, report, and interlocutory decree provided for by this chapter when:…
(2) the petitioner is a spouse of the natural parent of the prospective adoptee and the natural parent consents to the adoption or joins in the petition for adoption….
Since the DC Court of Appeals authorized second-parent adoptions in 1995, many judges have believed that they also have the authority to waive a home study when the male or female unmarried partner of the child’s parent petitions to adopt the child. Some judges, however, have read DC Code §16-308 narrowly and have ruled that they did not have that discretion under current law. In those cases, the couple has been required to go through a lengthy and sometimes expensive process.
The statute should be amended to clarify that judges do have the authority to waive home studies in the types of adoptions approved in In re M.M.D. In these adoptions, as in step-parent adoptions, the child is already living with both adults, one of whom is the child’s legal parent, and will continue to do so. Giving judges the authority to waive a home study when the judge finds in the particular case that it is appropriate will save the family time and money that can better be devoted to family matters. The judge should also have the authority to waive the home study when the adopting parent is in a registered domestic partnership with the parent. It should be emphasized that the waiver of the home study is never automatic and these decisions are made by a judge on a case-by-case basis; nothing in my recommendation changes this.
I therefore propose adding domestic partners and those “living in a committed personal relationship” with the parent to DC Code §16-308. The phrase “living in a committed personal relationship” is the exact phrase that appears in the In re M.M.D. case. The statute would read as follows:
§ 16-308. Investigations when prospective adoptee is adult or petitioner is the spouse or domestic partner of the parent or living in a committed personal relationship with the parent.
The court may dispense with the investigation, report, and interlocutory decree provided for by this chapter when:
(1) the prospective adoptee is an adult; or
(2) the petitioner is living in a committed relationship with, or the spouse or domestic partner of, the natural parent of the prospective adoptee, and the natural parent consents to the adoption or joins in the petition for adoption.
Thank you for the opportunity to testify on this important legislation.
Nancy D. Polikoff
Professor of Law