Friday, October 16, 2009

District of Columbia publishes list of registered relationships from elsewhere that will be recognized as domestic partnerships

Last year's expansion of the District of Columbia's domestic partnership laws included a provision requiring DC to recognize as domestic partnerships those relationships registered elsewhere that are "substantially similar" to domestic partnerships in DC. The law required the Mayor to certify which relationships from elsewhere fall into this category. Well, the Mayor took his time, but today the city published a Notice of Proposed Rulemaking listing the jurisdictions.

The list includes the states with civil unions (Connecticut, New Hampshire, New Jersey, and Vermont) and domestic partnerships denominated as providing the state-based legal consequences of marriage (California, Nevada, Oregon, and Washington). It also includes some registered relationships that provide less than all or substantially all the state-based legal consequences of marriage (New Jersey domestic partnerships, Colorado designated beneficiaries, and Hawaii reciprocal beneficiaries). Also included are the civil partnerships of the United Kingdom and the registered relationships in 15 other countries or subnational units of other countries.

I am puzzled by two exclusions from the list. Maine and Wisconsin both have domestic partner registries. They provide fewer legal consequences than does DC, but so do the statuses available in Colorado and Hawaii. The legislation passed by the City Council requires the Mayor to "broadly construe the term 'substantially similar' to maximize the recognition of relationships from other jurisdictions as domestic partnerships in the District." (DC Code 32-702(i)(1)). By that criteria, Maine and Wisconsin should both be on the list.

The existence of this list has importance legal consequences. It supports my position that DC should not eliminate its domestic partnership status when it enacts marriage. (See recent post on the subject here.) If we do so, all those registered in their states or countries will lose their status when they come to DC.

In addition, it eliminates any doubt about what law would govern a dispute that involved the couple's status. A DC court or administrative agency would apply the DC consequences of domestic partnership to the couple. As an example, I can offer information about a case pending now in Massachusetts. A couple in a California domestic partnership had a child and moved to Massachusetts. They split up and the biological mother is claiming she is the only parent of the child. Massachusetts has no law requiring recognition of the California domestic partnership. So far, the judge is using a doctrine called "comity" to find that the non bio mom is a parent because of the California domestic partnership, but the litigation goes on as the bio mom resists that. Under our law in DC, that couple would be treated as a couple registered as domestic partners in DC, and the bio mom would be unable to argue that she was the child's only parent.

Of course the certainty of applying DC law produces the possibility that the couple would have legal consequences in DC different from those in the state or country where they registered. But the only alternatives are not recognizing their status here at all (terrible idea) or attempting on a case-by-case basis to determine what the law applicable to that couple would be in the state where they registered. This latter determination would be difficult and would depart from normal family law principles. For example, a heterosexual couple (married or not) may have a child in Vermont and later move to DC. If they wind up in court over custody of the child, DC law will apply even though DC has a presumption of joint physical and legal custody and Vermont does not allow either joint physical or joint legal custody unless both parents agree to it. The parent opposing joint custody can't argue to the DC judge that they lived in VT when they became parents and so VT law should apply.

It's complex, but complex goes with the territory of state-by-state family law.

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