LGBTQ Rights Going Forward – Possible Impact of a Trump Presidency

During this campaign cycle, we saw the backlash to broad spectrum of efforts to obtain full equality. While Obama was not perfect, under his administration, movements of the people flourished. Immigrant communities organized, raised awareness, and applied pressure achieving at least a few minor gains, like the DREAM Act. Black Lives Matter flourished. While the president was not as forceful as I would have liked, he did defend the movement and under his leadership investigations occurred into police accountability/abuse and reports were issued that have the power to create some systemic change. He raised awareness of about the abuse of our system of incarceration and took steps available on the federal level.

The LGBTQ movement was also able to thrive under Obama. He appointed several members of our LGBTQ community into key leadership positions. Questions about fair housing, included questions about whether LGBTQ people were discriminated against. He also took a position that the ban on marriage discrimination was wrong. When the Supreme Court finally remedied the long standing practice of denying marriage to same-sex couples, the Obama administration went to work on finding all of the places where the federal government was involved and removing any barriers to equality.

It is hard to believe sometimes that Lawrence v. Texas was decided in 2003. How on earth was it only about 13 years ago that some states still outlawed homosexual conduct (i.e., sodomy)?  When the barriers finally began to fall, full equality felt like it came at a rapid pace. This is why, despite all the growth we have had, in many ways the changing administration doesn’t change the longstanding advice for the LGBTQ community.

The people dedicated to these issues have issued FAQs and information. Lambda Legal has Post-Election Facts – Covering marriage (unlikely to see much change), trans youth, conversion therapy, hospital visitation, HIV and concerns about the repeal of Obamacare and hate crimes. NCLR has several blogs, Shannon Minter, their super smart legal director has this to say about the unlikely outcome of repealing marriage. The NCLR is also one of the best resources out there to understand state-by-state differences. The Transgender Law Center issued this Statement on the election.

In addition to these thoughts, I will add, no president, congress, or court has ever simply given the LGBTQ people rights. It has been a hard fought battle, that was based in some incredible activism changing hearts and minds.

It also doesn’t hurt our cause that LGBTQ people are everywhere. Race, religion, ethnicity, and many other identities find people still segregated, largely due to historic discrimination issues, but also because sometimes it is easier to live in communities where you see yourself, you know you are less likely to be targeted for harassment and violence, you know when you go to the store they will have beauty products for your hair, or a grocery store that will meet your kosher needs. This segregation doesn’t occur in the same way for the LGBTQ people, while as grown-ups we may seek out gayborhoods, we are raised Muslim, Evangelical, atheist, Jewish and every other religion. We are Black, Asian, Latinx, Native American/First Nations/Indigenous, White and every other race and combination of race and/or ethnicity. We come from conservative families to progressive to anarchistic families. It is simply impossible to shield yourself from loving someone, a son, daughter, auntie, uncle, parent, who may come out as LGBTQ and the more accepting world expanded the safety area for people to come out. It is impossible to exist in any identity without also having LGBTQ people as a part of that identity.

However, this change is recent. We have not lived in a post-Obergefell (Supreme Court case affirming the dignity of same-sex marriages and holding discriminating against same-sex people in marriage liscenses violated our constitution) world long enough to have let our guard down. Attorneys advising same-sex clients were still saying, get your documents and don’t delay.

What kind of documents should you get?

Transgender people should make sure their identity documents match their gender identity (to the extent possible as they predominately exist in the male/female binary). One place to turn for information on this available at the Transgender Law Center Identity Document Resources– it’s California focused, but it does have information about federal changes. Looking at the California info may also help you figure out how to look for the same in your own state.

Protect your relationship to your children. If you have read any other blogs I have written or seem me present, you have heard me say marriage equality does not equal parentage equalityGet a court order affirming parents are parents. This can be done a couple of ways. Many people are most comfortable with adoptions. There is case law to support that court orders adjudicating parentage will be given full faith and credit, this is essentially an order of parentage, similar to what has been historically called paternity. In Washington State, our law regarding determining parentage is gender neutral (Uniform Parentage Act / UPA, which despite its name is not uniform and many states haven’t adopted it, or they tweak it. Washington tweaked our UPA to be clear it included same-sex couples).

If you haven’t done this, and your family is splitting up, you can make sure that your parenting plan has a finding that you are the legal parents. Parenting plans have extra security under a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA – and unlike the UPA it actually is uniform). There is also something called the Hague convention and signatory countries (countries who have agreed to follow the Hague rules) will also help with the enforcement of parenting plans). There are some concerns with something like this and possible rights and benefits that could flow to your child upon your death, so you should definitely explore other possibilities.

All LGBTQ couples should have estate planning documents – which a way of making you sound wealthy, but really means that you should have a power of attorney, medical directives, a will. These kind of documents are fairly easy to obtain. The reason for having them is mainly to have an additional weapon against discriminatory individuals at important times. These are also the kinds of documents people absolutely needed when there was no marriage. It was the only way that same-sex couples could link themselves in the eyes of the state.

Pay Attention – More Advice Will Come Out Once Trump is in Office with a Republican Congress

There is so much more we will learn in the coming months and years. The hateful rhetoric connected to this election has all of us justifiably nervous. The thing that helps keep me from panicking is remember that our government was set up to thwart major sweeping changes. It took a long time to get where we are and it will not be unwound easily.

Perhaps it means as states that are happy with having the marriage issue decided can try to clean up their statutes that banned marriage and explicitly say that same-sex marriage is allowed in their state (this would mean absent an amendment to our constitution marriages would still have state protection). While states are at it, they should make their laws regarding parentage and have two things clear (1) that families can affirm their parentage if they meet the terms of the UPA (which is basically that you consented to assisted reproduction while married or that you have lived with the child since birth for several years and held the child out as your own) and that the provision apply on a gender neutral basis, i.e., biology is not the only factor in determining parentage.

Also, be sure to reach out when you experience discrimination. The national organizations like Lambda Legal, NCLR, Transgender Law Center, and the Southern Poverty Law Center, need to know what’s happening in people’s lives to respond to it. Also, let your state organizations know. In Washington, groups like Legal Voice and the ACLU have been spearheading many efforts. Our Attorney General created a Civil Rights Division. The QLaw Foundation has a legal clinic that provides free legal advice on civil question (i.e., non-criminal).  Gender Justice League has resources on health insurance issues (among many other things). Ingersoll Gender Center has support groups, resources, and information about providers. There are also many other groups that focus on intersectionality: Entre Hermanos, Trikone NW, NQAPIA, and many more.

I’ll keep trying to update about what’s happening in Washington as several interesting cases concerning LGBTQ people are before our state Supreme Court this week.

Parting thought: Please take care of yourself, legally, socially, and emotionally.

Family Law Appeal Examples

In a recent post, I discussed appeals generally. In this post, I’m going to discuss examples of family law appeals that have been decided in the last 14 days. In a span of 14 days of the 23 published decisions, none of the published decisions were family law cases. There were 48 unpublished decisions and of those, about six had a connection to the issues families deal with. Below is an example of cases that impact families.

Published Decision

In re the Marriage of Olsen  (Division III)

In this case, the husband and/or his attorney failed to appear for trial on two prior occasions. On the third date trial was to proceed, they failed to appear again and the court proceeded with the trial based on wife’s evidence and entered a final order. Husband appealed the orders under CR 60(b)(1) ((b) (mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order). The Court denied his motion and so he appealed. The appellate court affirmed the lower court holding that a party, in this case the husband, bears responsibility for the negligence of his lawyer and is not entitled to relief from the trial outcome.

An unusual fact about this case, is the couple had been together for nine months. They were divorced in Kansas in October 2010, but the court did not decide financial issues because it lacked personal jurisdiction over Mr. Olsen (Mr. Olsen did not live in Kansas, the marriage didn’t take place in Kansas, etc.) Mr. Olsen then initiated a dissolution proceeding in Spokane County to decide child support, divide property, debt and apportion liability for attorneys fees.  Trail was initially set for January 2012, continued by agreement, unsuccessful mediation in March 2012, trail set for April 2012,  but Mr. Olsen and his attorney did not show (no reason indicated in the order) and the trail was continued to May 2012. On May 14, 2012, husband’s attorney appeared but husband failed to appear and trial was rescheduled to May 16, 2012. Husband’s attorney claimed he was having chest pains in the morning, court continued to the afternoon for documentation from a healthcare provider that a health issue prevented him from attending court (an unusual move by a court, one employed only if a court is under the belief they are being lied to as attorneys with a decent reputation would ordinarily be given the benefit of the doubt).  Father had not appeared in the morning. Father and attorney did not appear in the afternoon and no evidence of a medical issues was provided, so the court proceeded with trial. On June 13, 2012, the court issued it’s memorandum decision. It is unclear when Mr. Olsen filed his motion to vacate, but based on the Ms. Olsen’s arguments, it was likely more than 30 days after the decision was issued because one of her defenses was that he should have reconsidered (typically a 10 day deadline) or appealed (typically a 30 day deadline).

A legal issue the court discussed was whether orders entered after failure to appear at trial are default orders or just orders. The court clarified that if a trial is held, even if one side does not appear, the judgment will be on the merits, not a judgment by default.

No attorneys’ fees were granted for either party.

Update: On March 3, 2015 the Washington State Supreme Court denied the petition for review. 

Unpublished Decisions

In Re The Guardianship Of: Dorothy May Kertis (Note, this case would not be called a family law case, it would be a trust and estate litigation case) 

This was a case where there was five year domestic violence order in place restraining a son from having contact with his mother who was incapacitated (she has dementia).  The allegations included claims that he made his mother so agitated during his visits that it impacted the staff’s ability to care for her and he refused to follow the terms and conditions placed on visits. There also claims that he stole from his mother and had a long history of alcohol and drug abuse. The staff alleged he tried to sneak into his mother’s room at 1:00 a.m. and appeared to be intoxicated and was aggressive and threatening. The guardians petitioned for and were granted a domestic violence protection order (DVPO).  In 2013, the son tried to end (terminate) the DVPO. Before the hearing, he entered into an agreed order with the guardians that would allow for supervised visits. He then sought to have the DVPO terminated and the court rejected his motion based on insufficient evidence to find a substantial change in circumstances. The son appealed the decision and the court of appeal upheld the decision.

In Re The Marriage of Collins, (Division Two)

In this case, father appeals the primary residential placement with the mother. Couple married in August 2008 and separated in 2010, father filed for dissolution in 2012. They had one child who was three years old at the time of trial. Father, mother and a guardian ad litem (GAL) testified at trial. The GAL recommended that the father be the primary residential parent. The trial court disagreed. It found the father’s testimony was not credible and mother’s was credible. The court found that (1) father intentionally and with malice made material representations to mislead the trial court, (2) father intentionally and with malice aforethought refused to abide by a lawful court order granting mother residential time, (3) Father interfered with Mother’s relationship with the child, and (4) Father engaged in abusive use of conflict which created the danger of serious damage to the child’s psychological development.

On appeal, Father made an important error and he did not designate the final parenting plan as a part of the record on appeal, thus the actual plan was not before the court to review, which necessarily limited the scope of the court’s review. Thus the court limited its review to the question of whether the trial court abused its discretion by disregarding the GAL’s findings that there was no abusive use of conflict and the GAL’s recommendation that the Father be the primary residential parent.

The appellate court upheld the trial court’s decision. The court noted that the trial court had made detailed findings that outlined its decision. It also noted that the Father was arguing about credibility and the strength of evidence, two issues solely within the purview of the trial court. The appellate court also noted that the GAL was not as fully in support of the father as the father alleged. Noting that the father’s conduct could be viewed as abusive use of conflict and that if the father had followed the agreed plan, the child would have been shared equally with both parents, but the father failed to follow the plan.

D.B. v. E. B. (Division III) 

Father appeals parenting plan modification, which reduced his residential time with his son. The appellate court affirmed the trial court’s decision.

Additional details: Residential schedule was initially decided in 2006, when the child was four years old. In this plan, the child resided with father Wednesdays at 4:00 to Saturdays at 10:00 a.m. every other week. On the alternate week, from Wednesdays at 4:00 to Thursdays at 4:00.

During the 2010/2011 school year the child began to spend approximately half of his time with his father due to the mother’s new job which required her to work later. Father’s work schedule allowed him to pick up the child from school and the child would reside with him until the mother picked him up after work. In November 2011, child was struggling, so the parties agreed child would stay over with father when mother worked late. Then in the fall of 2012, the mother’s boyfriend began caring for the child on the nights that the mother worked and the mother went back to the parenting plan.

In response to reverting to the original schedule, the father filed a petition to modify the parenting plan because the parties had substantially deviated from the original residential schedule and that the child had been integrated into his home with the mother’s consent. He requested the parenting plan be modified and he be granted primary residential custody. The mother opposed the change.

The superior court commissioner determined there was adequate cause (the first threshold that must be passed in a modification) and that the parties could proceed to trial, based on a finding that the child was spending equal time with both parents in significant deviation from the original plan and ordered the parties to have a temporary 50/50 plan.

At trial, the court found that the parties had come together to decide a better option for the child, but it did not adopt the commissioner’s 50/50 plan, instead the court essentially allowed for the father to have overnights when the mother worked past 8:00 p.m., which was about 5 out of 21 nights. Plus every other weekend.

The father appealed, arguing that the trial court should have adopted the commissioner’s 50/50 plan. The court examined the issue based on whether the court had abused its discretion – meaning if the trial court decision was manifestly unreasonable or based on untenable grounds or reasons. The appellate court noted that there is a strong presumption against modifying a parenting plan and a two step process, first adequate cause must be found and then the parties must proceed to trial and prove (1) a substantial change occurred in circumstances as they were previously known to the court, (2) the present arrangement is detrimental to the child’s health, (3) the modification is in the child’s best interest, and (4) the change will be more helpful than harmful to the child.

The appellate court found that the father failed to show how the court abused its discretion in modifying the residential schedule, noting that the trial court is not bound by a commissioner’s adequate cause findings as adequate cause hearings simply determine whether the moving party has met the threshold burden of showing a substantial change in circumstances to warrant a full hearing on the petition.

The mother was awarded attorney’s fees and costs based on the finding that she was the substantially prevailing party.

In re Marriage of Hunt (Division III) 

Husband appealed the property and debt distribution, arguing that the trial court failed to include three community debts in the division and that the trial court abused its discretion when it refused to accepts additional documentation after trial. The appellate court found the trial court did not err and affirmed the trial court’s decision.

Details about the case, parties were married for five years before separation. They had personal property, debts, and a sheep ranch and butchering business. The court found the wife’s evidence more credible as she was much better at documenting and backing up her claims, whereas the husband did not provide support for his testimony and some of the content of his decisions were just difficult to believe.

After trial was all over, husband made a claim that there were almost $160k in debts of the community and business that he just failed to bring up at trial. The trial court heard a hearing but did not allow husband to reopen the trial and submit new evidence. The court noted it would be improper, especially based on weak evidence that was not credible. The appellate court affirmed, also noting that the evidence was not newly discovered (husband new about it before trial) and it could have been produced at trial with reasonable diligence. The court said that the evidence at trial does not support husband’s claims on appeal and noted that he had the ability and control over the documents to substantiate them at trial, and these claims were not credible, he was inconsistent and insufficient in his claims and proof.