Breaking News: New York divorce Attorney Lisa Beth Older discusses Federal Court's July 8, 2010 ruling on Gay marriage

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On July 8, 2010 the Federal District Court held that "DOMA", a law banning recognition of gay marriage, was unconstitutional. The impact of this ruling will have profound consequences for gay and lesbian couples through out this country, says New York City divorce Lawyer Lisa Beth Older.

New York Divorce Lawyer Lisa Beth Older, Esq.

DOMA Is An Act Which Should Be Repealed In The Interests Of Justice

New York City divorce, custody and appellate lawyer Lisa Beth Older, Esq. appeared on Fox Five News on July 9, 2010 to provide legal analysis for a television segment on the latest Court ruling on Gay Marriage, commenting on the Federal Ban against gay marriage and the Judge who called the ban unconstitutional.

On July 8, 2010 the United States District Court Judge Joseph Tauro, appointed to the Court by Richard Nixon, struck down DOMA, or the Defense of Marriage Act, as unconstitutional as applied to Massachusetts. ( Mass.v. US Dept of Health, et al., Civil Action No. 1:09-11156-JLT). DOMA was struck down because the law failed to provide equal protection of the law for gay and lesbian couples and because it impinged upon a States' right to define marriage, stripped the States of the right to legislate under the 10th amendment to the constitution, and disallowed the State from equally distributing federal funds amongst its citizenship, thus invoking invidious discrimination against its citizens.

The Federal Ban against gay marriage codified as the "Defense of Marriage Act" or referred to as "DOMA", was enacted by the Clinton Administration in 1996.

The act of the Federal District Court in striking down DOMA lends strong support to gay and lesbian couples in their legitimate quest to have equal rights, and to also have equal access to New York Courts for the purpose of seeking relief as to their children in disputes involving custody visitation, child support and divorce rights attendant to same sex marriages performed in alternate States.

"Under the current law known as DOMA, the federal government does not recognize same sex unions" says New York City divorce lawyer Lisa Beth Older, Esq. "DOMA narrowly defines marriage, and derivative parentage rights, as a union between a man and a woman." DOMA states that parties to a same sex unions shall not be allowed to take advantage of federal benefits and protections given to and enjoyed by heterosexual couples. Examples of the kind of benefits prohibited to gay and lesbian couples are the benefits derived from any Federal program, such as being allowed to sign of joint tax returns, being allowed to receive health insurance benefits, having federal burial rights for surviving spouses of a deceased gay and lesbian service man or service woman, and other such federal benefits stemming from federal employment. While DOMA does not expressly preclude States from passing their own laws affirming gay and lesbian marriage, DOMA does expressly allow a State to not recognize a same sex marriages performed in alternate State that has in fact legalized gay and lesbian marriage. The legitimacy of DOMA affects all gay and lesbian couples in Iowa, Connecticut, Massachusetts, New Hampshire and Vermont, along with the District of Columbia.

The lawsuit against the legitimacy of DOMA was filed by the Gay and Lesbian Advocates and Defense group, and a second companion case was filed by the Commonwealth of Massachusetts in the Federal District Court.

The Obama Administration is likely to appeal the law to the United States Circuit even though he campaigned for president in favor of repealing DOMA. Obama will need to make a tough decision soon.
Proponents of the law say that the Justice Department is bound to enforce and defend laws of the land.

Presently there are five States that recognize gay and lesbian marriage, those being New Hampshire, Vermont, Connecticut, Massachusetts, Iowa , as well as the District of Columbia. This ruling will likely have gay and lesbian couples rallying for similar law suits against DOMA in their respective States.

Thus, if Obama decides to appeal the ruling to the United States Circuit Court, and if the higher Court agrees with Judge Tauro's ruling then, and if the Justice Department appeals that holding as well the case will likely go all the way to the United States Supreme Court. If DOMA is found unconstitutional. there, then DOMA will no longer be the law of the land. If the opposite result appertains, and DOMA withstands the legal challenge, then DOMA still prevails and the ban against gay and lesbian marriage will be stronger than ever. This is a frightening prospect for gay and lesbian couples across the board who deserve equal protection under the law.

Gay and lesbian Marriage has been recognized in Massachusetts since 2004. Now that a Federal Judge has struck down DOMA, gay and lesbian spouses or couples of same sex unions will now be allowed to apply for federal benefits, this only after the automatic fifteen (15) day automatic Stay lapses and absent any newer stays by the Circuit Court. This ruling will open the flood gates for legal action by gay and lesbian citizens of States that have legalized same sex marriage.

Lisa Beth Older, Esq. opines that the Federal ruling will also likely affect gay and lesbian custody rights. Where there is marriage, there is divorce. As such, it will be interesting to see what effect if any the ruling of the Federal Court striking down the Defense of Marriage Act will have on New York Family Court cases.

The Federal Court ruling will have an impact on gay and lesbian disputes in New York. "The New York Court of Appeals is charged with dealing with problems of law stemming from paternity, child support, custody and divorce" says New York appellate and divorce lawyer Lisa Beth Older. At present, New York does not recognize gay and lesbian marriage and divorce and in many instances limits standing of gay couples to sue in family court. However, in a recent series of cases coming down from the New York Court of Appeal in May 2010 the New York's highest Court has begun to seriously grabble with the problem of how to deal with children of gay and lesbian marriages or gay and lesbian unions in custody and support cases.

Prior to May 4, 2010, if a child of a New York same sex couple was conceived through artificial insemination, and if the subject child of that union was not adopted by both gay and lesbian parents in New York, then the non-adoptive, non- biological parent had no standing to sue for custody and visitation, and the biological parent had no responsibility to provide child support for the child. Now, the law as to child support and gay couples has changed dramatically. As of May 4, 2010 the Court of Appeals, in the Matter of H.M. v. E.T held that a same sex partner may sue a non-biological partner for child support, regardless of the lack of adoption or biological ties. This holding broke new ground for Gay and lesbian rights by expanding the notion of parentage beyond the borders of heterosexual couples with an emphasis on the child's attachments and on the "best interest of the children." There, the Court of Appeals recognized the right of a gay and lesbian woman to sue for child support in Family Court as against a same sex parent. This ruling has large consequences as it gives the State Courts power to define who is a parent for purposes of child support.

As to the rights of gay and lesbian couples to sue for custody, the New York Court of Appeals is not as liberal. The holding in the Matter of Alison D. v. Virginia M. (77 N.Y.2d 651, 1991) stated that New York parenthood requires that there be a biological or adoptive relationship between parent and child before custody may be asserted. However, the Court of Appeals in May 2010 diverted from this position, at least in part. While reviewing a New York lower court holding on a visitation case involving a same sex marriage of Vermont, the case of Debra H. v. Janice R (Court of Appeals May 4, 2010, NY slip opinion 0375), the Court held that New York must now recognize Debra H.'s parental status under the law of Vermont.

Lisa Beth Older states that "the case of Debra R. is just start. More must be done by the legislature and the Courts in interpreting these laws of access to Family Court through the prism of the United Stated Constitution." Holding on to the last vestiges of Matter of Allison, supra, the Court held that while New York still does not recognize a gay and lesbian parent's right to sue for custody of their child absent an adoptive or biological relationship to the child, if the child is born of a legally recognized same sex marriage in another State where same sex marriage is legal, that parent may indeed sue for custody. This may be a step in the right direction.

Accordingly Judge Taro's federal ruling banning the Federal government from legislating unequally between gay and lesbian and heterosexual couples, by giving rights to heterosexuals without giving equal rights to gay and lesbian couples bears on New York State's power to overrule and strike down any State law that unconstitutionally fails to provide equal access to the Courts, equality, due process of law, and justice to all of its citizens. The Federal holding will serve as a platform to empower New York State Courts to start providing all couples, gay and lesbian alike, equal access and standing to utilize the Courts for purposes of suing for custody, visitation and child support. This ruling would allow brave Courts throughout this country to challenge State laws that discriminate against one set of parents while allowing other parents to have access to the court system to secure their rights of access to gay and lesbian parents.

The Federal District Court holding, while only relevant to Massachusetts, supports the notion that State and Federal governments may not pass and enforcing laws that discriminate against some of its citizens, while providing government benefits to other groups of citizens. By way of deduction, this holding would support the fact that both Federal as well as State governments should not pass and enforce laws that deny equal access to the Courts. Under the Constitutional provisions of equal protection of the law, all citizens, whether they be gay, lesbian or heterosexual must be afforded equal and identical benefits of due process of law through access to our State Courts for the purpose of disputing custody and visitation claims. Derivatively all children would benefit from a proactive Court whose aim is to protect innocent children, whether they be the product of gay or heterosexual couples.    

Empowered by this recent Federal Court decision of July 8, 2010 New York Courts might venture forth toward striking down discriminatory laws that preclude gay and lesbian parents from suing for custody and visitation in the absence of a biological or adoptive connection to the child. "Presently, in a custody dispute between same sex partners, where there is no adoption or legally recognized gay marriage, the biological parent will prevail over the non-biological parent, absent adoption or a legally recognized marriage performed in another state" says New York attorney Lisa Beth Older, Esq. As to the effect DOMA has on children of gay couples, it is reprehensible, because custody disputes inevitably ends with a child losing the very active involvement of one of the parents.

Proponents of the Defense Of Marriage Act argue that it is not up to a Court to write the law as to gay and lesbian marriage. In large part, New York State Courts still adhere to the same principal, but have shown bravery in its latest progeny of cases.

Lisa Beth Older, Esq.
http://www.nycdivorcelawyer.net

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