DOMESTIC PARTNERSHIP IN NEVADA
Over the past several years, the issue of same sex-marriage has been a controversial and frequently litigated subject throughout the United States. A number of states have either passed or attempted to pass constitutional amendments banning the recognition of same sex marriage, while other states have explicitly chosen to recognize a same sex union as it would the marriage of a heterosexual couple. Below is information on this topic in the context of Nevada law and the possible effects of a domestic partnership as it relates to the custody of a minor child.
FORMATION OF DOMESTIC PARTNERSHIPS IN NEVADA
Approximately 23 states in the United States currently allow for some form of marriage, civil union, or domestic partnership for same-sex couples. While the Nevada constitution was amended to prohibit same sex marriage in Nevada in 2002, the Nevada legislature subsequently passed the Nevada Domestic Partnership Act (“DPA”) in October of 2009. The act’s recited purpose is to allow for the creation of a social contract between two individuals who:
1) have chosen to share one another’s lives in an intimate and committed relationship of mutual caring; and
2) Desire of their own free will to enter in to a domestic partnership…
The domestic partnership is validated much in the same way one creates a business in Nevada, by filing an application with the Secretary of State and paying the associated fees. You can view the application here: http://nvsos.gov/Modules/ShowDocument.aspx?documentid=1192 The statute also requires that the applicants
3) have a common residence,
4) are not married or a member of another domestic partnership and
5) are not related by blood to a degree that they would be prevented from marrying under Nevada law.
No solemnization or other religious ceremony is required for the domestic partnership to be valid, and each religious faith is left to decide whether it will perform or recognize domestic partnership ceremonies as part of its religious tenets.
THE EFFECTS OF A DOMESTIC PARTNERSHIP IN NEVADA
NRS 122A.090 states that a domestic partnership “is a valid civil contract entitled to be treated in all respects under the laws of this State as any other civil contract created pursuant to title 11 of NRS…” Title 11 of the Nevada Revised Statutes contains chapters dealing with all aspects of domestic relations, including: Premarital agreements, Divorce, Custody and Support of Minor Children, Parentage, Adoption, and Termination of Parental Rights.
Of specific interest are the effects of the DPA on 1) parentage of a domestic partner who is not the biological parent of a minor child born into the domestic partnership, and 2) the custodial rights of domestic partners over a child adopted or born into the domestic partnership if the domestic partnership is terminated. These issues are particularly relevant in the context of a female domestic partnership, where one of the partners gives birth to a child during the existence of the domestic partnership and the other is not biologically related to the child.
Parentage under the DPA
Under chapter 126 of the Nevada Revised Statutes there are rules that apply to husbands when a child is born to his wife during the marriage. For example, under NRS 126.061 a husband whose wife gives birth to a child by virtue of artificial insemination is legally deemed to be the father of that child provided that the couple has signed the appropriate documents and followed the protocol described in the statute. Assuming this to be the case, the donor of the sperm used in the artificial insemination is deemed to have no legal relationship to the child and the husband legally becomes the child’s father.
Similarly, under NRS 126.051 a husband whose wife gives birth to a child during the marriage is presumed to be the father of that child, regardless of actual parentage. Additionally, the execution by both husband and wife of an acknowledgment of paternity at the time of the child’s birth effectively establishes the father’s paternity of the child if not contested within 60 days of its execution.
On its face, the DPA grants the same rights to a female domestic partner who is a non-biological parent, as are granted to a husband who is not biologically related to his wife’s child under Nevada law. While the statutes cited above use the word “husband” instead of “spouse,” the DPA specifically states that “where necessary to protect the rights of domestic partners pursuant to this chapter, gender specific terms referring to spouses must be construed to include domestic partners.” Essentially, this means that anywhere the designations “husband” or “wife” appear in title 11 of the Nevada Revised Statutes, the same privilege associated with that designation is extended to a domestic partner regardless of gender.
Theoretically then, the adoption by a non-biological parent of a child born to her domestic partner during the existence of the partnership would be unnecessary. If the child was conceived by artificial insemination, then the non-biological parent would automatically be considered a legal parent assuming all proper protocol was followed. Additionally, if the child is born during the domestic partnership but not due to artificial insemination, the non-biological parent is still presumed to be the legal parent. An execution of an acknowledgement of paternity (or parentage) would effectively establish legal parentage if not challenged within 60 days. The non-biological parent would then enjoy all the rights and responsibilities of the natural parent without the necessity and expense of an adoption proceeding.
Divorce and Custody under the DPA
The DPA also specifically incorporates NRS chapter 125, which specifies the rules for dissolution of marriage, as the rules that will apply to a domestic partnership should either party wish to terminate the relationship. The domestic partners would be “divorced” just as any other married couple, with the same rights and obligations regarding community property, alimony, child support and child custody as provided to traditionally married couples. Read in conjunction with NRS chapter 126, this means that upon divorce, the non-biological parent would enjoy the same rights and presumptions regarding joint custody as the biological parent notwithstanding the lack of biological relationship between parent and child. The parties to the divorce would stand on equal footing and neither would have any advantage in terms of preference of custody when the Court determines what custody arrangement will be in the child’s best interest.
To date, the above scenarios have not been challenged or litigated in the Nevada Supreme Court. It is therefore impossible to say exactly how the Court will interpret the effects of NRS 122A.200 on the parentage and custody rights of female domestic partners. However, in light of the foregoing discussion, female domestic partners should be able to take advantage of all the benefits regarding parentage and custody that are afforded to married couples under title 11 of the Nevada Revised Statutes.
If you or someone you know is interested in more information regarding this topic or would like to speak to an attorney, please do not hesitate to contact us by phone or via our “contact us” page.
Mills & Mills Law Group focuses its practice in the areas of family law including: divorce, custody, child support, spousal support, alimony, guardianship, adoption, termination of parental rights, and abuse and neglect proceedings. We also practice in the areas of corporate consulting, contracts, business organizations and criminal law. If there is a specific topic you would like information on, feel free to comment on the blog or contact us directly via our “contact us” page.