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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. Massachusetts has established, and 78% of its legislature has confirmed legal recognition of same-sex marriages. Vermont, Connecticut, New Jersey, and California have enacted Domestic Partnership or Civil Union laws with all of the rights and responsibilities of marriage. Oregon and New Hampshire have done likewise with their laws effective in January 2008. And progress continues elsewhere.

 

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.              District of Columbia Housing Authority. Board of Commissioners.

 

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         District of Columbia Employees Retirement Program Management. Definitions.

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 District of Columbia.

 

(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 District of Columbia under the provisions of subchapter II of Chapter 23 of this title or subsection (b) of this section;

 

(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, American University, has been unwilling to treat the cost which they pay for an employee’s domestic partner's insurance as non-taxable for employees. Simply adding "and other costs or expenses" should correct that oversight and restore the Council’s original intention.

 

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 New Jersey and the United Kingdom.

 

The proposed language should cover civil unions from Vermont, Connecticut, New Jersey, and New Hampshire, and domestic partnerships from California and Oregon. I believe that it would exclude domestic partnerships from Maine and reciprocal beneficiaries from Hawaii, as those laws only cover a few areas, and are therefore not substantially similar.

 

European countries have a variety of names for statutory non-marriage relationships which should be recognized including:

·         Andorra: unio estable de parella (stable union of pairs)

·         Australia

o        Tasmania - significant relationship

·         Belgium: cohabitation légale, wettelijke samenwoning, gesetzliches zusammenwohnen (statutory cohabitation)

·         Denmark: registreret partnerskab (registered partnership)

·         Finland: rekisteröity parisuhde registrerad partnerskap (registered partnership)

·         France: Pacte civil de solidarité (civil solidarity pact)

·         Germany: Lebenspartnerschaft (life partnership)

·         Iceland: staðfesta samvist (confirmed cohabitation)

·         Luxembourg: partenariat enregistré, eingetragene partnerschaft (registered partnership)

·         Netherlands: geregistreerde partnerschap (registered partnership)

·         New Zealand: civil union

·         Norway: registrert partnerskap (registered partnership)

·         Sweden: registrerat partnerskap (registered partnership)

·         United Kingdom (civil partnership)

 

Recognition of same-sex marriage from Massachusetts, Canada, Belgium, South Africa, Spain, and the Netherlands should be handled administratively under existing law and not through today’s legislation.

 

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 Canada should not be affected until the question of recognition is settled. They will either continue to be recognized in D.C. as domestic partners, or immediately be recognized as married. The following new paragraph following the previous one should suffice:

 

§ 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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