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UNIVERSITY OF LOUISVILLE
JOURNAL OF FAMILY LAW
Volume Thirty-One 1992-93 Number Three
HOMOSEXUALS AS A NEW CLASS OF

DOMESTIC VIOLENCE SUBJECTS UNDER THE
NEW JERSEY PREVENTION OF DOMESTIC
VIOLENCE ACT OF 1991
Hon. Mac D. Hunter, J.S.C.*
I. INTRODUCTION
All fifty states and the District of Columbia have to varying de-
grees, enacted domestic violence statutes.' This legislation represents a
definitive expression of state police power, designed to protect the
health, safety and welfare of persons victimized by domestic violence.
Pursuant to statute, a court is authorized to hear ex parte evidence,
determine whether the court has jurisdiction over the parties, and if
jurisdiction exists, whether the victim has suffered an act of domestic
violence. If a court has jurisdiction and finds an act of domestic vio-
lence, the victim is entitled to a civil protection order. The necessary
* Judge of the Superior Court, State of New Jersey. B.S., Rider College. L.L.B., J.D., Seton
Hall University School of Law. M.J.S., University of Nevada, Reno/The National Judicial Col-
lege. The author expresses his appreciation for their valuable services and insight to Peggy Tinker,
his secretary; Vincent J. Gaughan, Esq. and Cherise Kimball, Esq., his former judicial law clerks;
James Richardson, Thesis Advisor; and Hon. Robert V. Payant, Dean of the National Judicial
College.
N.J. COMM'N ON SEX DISCRIMINATION. SURVEY OF ANTI-DOMESTIC VIOLENCE LEGISLA-
TION (1991) (Updated and reprinted in Appendix I).
JOURNAL OF FAMILY LAW [Vol. 31
standard of proof will vary from state to state. Although the requisite
standard of proof ranges from "preponderance of the evidence," "clear
and convincing," to "reasonable grounds," 2 all of these standards are
substantially less than "beyond a reasonable doubt," the standard nec-
essary for a criminal conviction.3
New Jersey's "Prevention of Domestic Violence Act" was enacted

in 1982.' The statute experienced several procedural modifications;
however, the August 14, 1991 amendments were the most comprehen-
sive. The amended legislation, 5 which became effective on November
12, 1991, incorporated an additional category of victims,' thus ex-
panding the state's domestic violence jurisdiction.
The New Jersey Amended Prevention of Domestic Violence Act of
1991 adopted a strong anti-domestic violence public policy position that
unequivocally emphasizes victim and family protection. The legislature
expressed its intention that the primary duty of law enforcement and
the responsibility of the courts is to protect victims of domestic vio-
lence.7 New Jersey defines a victim of domestic violence as:
any person who is 18 years of age or older or who is an emancipated minor
and who has been subjected to domestic violence by a spouse, former spouse,
or any other person who is a present or former household member, or a person
with whom the victim has a child in common. 8
Henceforth, the new class of domestic violence victims as defined

under the recent amendment includes any person 18 years old or older
or an emancipated minor who is subjected to domestic violence by any
other person. The amendment is gender-neutral and is expansive
enough to include a same-sex, non-related cohabitant or former cohabi-
tant of a household. This broader class of domestic violence victims
includes lesbians and gays who are presently cohabiting as a non-tradi-
tional family with or without children, or who have previously cohab-
ited in a homosexual relationship.
PETER F. FINN & SARAH COLSON, U.S. DEP'T OF JUSTICE, CIVIL PROTECTION ORDERS:
LEGISLATION, CURRENT COURT PRACTICE, AND ENFORCEMENT 14 (March 1990).
Ild. at 3.
* N.J. STAT. ANN. § 2C:25-1 (West 1982) (repealed 1991).
5 N.J. STAT. ANN. § 2C:25-17 (West Supp. 1992).
6 N.J. STAT. ANN. § 2C:25-19d (West Supp. 1992).
N.J. STAT. ANN. § 2C:25-18 (West Supp. 1992).

' N.J. STAT. ANN. § 2C:25-19d (West Supp. 1992).
1992-93] DOMESTIC VIOLENCE 559
New Jersey has designated thirteen specific acts of criminal behav-

ior that constitute domestic violence. If a court finds by the preponder-
ance of evidence that one or more of these acts have been inflicted upon
a person protected under the statute, then such act shall constitute an
act of domestic violence. 9
The most common offense alleged as an act of domestic violence is
harassment, which may be with or without physical contact. The stat-
ute provides that a person is guilty of harassment if he or she:
a. Makes, or causes to be made, a communication or communications anony-
mously or at extremely inconvenient hours, or in offensively coarse language,
or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching,
or threatens to do so; or
c. Engages in any course of alarming conduct or of repeatedly committed
acts with purpose to alarm or seriously annoy such other person."0
Anti-social behavior such as harassment need only be alleged by

the victim to qualify for an immediate temporary restraining order.
The New Jersey domestic violence statute encourages an alleged victim
to file a complaint, even if the victim has already left the residence and
terminated the relationship, in an attempt to avoid further incidents of
domestic violence. 1 Moreover, filing the domestic violence complaint is
' The thirteen acts designated under the statute are:

(I) Homicide N.J.S. 2C:1 1-1
(2) Assault N.J.S. 2C:12-1
(3) Terroristic threats N.J.S. 2C:12-3
(4) Kidnapping N.J.S. 2C:13-1
(5) Criminal restraint N.J.S. 2C:13-2
(6) False imprisonment N.J.S. 2C:13-3
(7) Sexual assault N.J.S. 2C:14-4
(8) Criminal sexual conduct N.J.S. 2C:14-3
(9) Lewdness N.J.S. 2C:14-4
(10)
Criminal Mischief N.J.S. 2C:17-3
(I1)Burglary N.J.S. 2C:18-2
(12)
Criminal trespass N.J.S. 2C:18-3
(13)Harassment N.J.S. 2C:33-4
N.J. STAT. ANN. § 2C:25-19a (West Supp. 1992).
30 See N.J. STAT. ANN. § 2C:33-4 (West Supp. 1992).
The Attorney General and the New Jersey Supreme Court jointly issued a publication
designed to provide guidance to court personnel and law enforcement officers in achieving a more
uniform, coordinated handling of domestic violence cases, and in establishing the following policy
regarding behavior constituting domestic violence:
It is essential that a victim complaining of harassment not be turned away because the
action complained of appears to be minor as compared with other acts of domestic
violence. Moreover, dealing with domestic violence at the harassment level often pre-
neither a substitute for, nor a bar to, the victim filing criminal charges
for the same offense or offenses that constituted the acts of domestic
violence."2
Other issues considered in this Article involve the unprecedented

legal situations confronting the courts and the opportunity to chart a
new course in adjudicating both visitation1 3 and temporary child cus-
tody. 14 The focus upon victim eligibility is relegated to persons in the
non-traditional family relationship. This Article identifies the new class
of domestic violence subjects, correlates homosexual abuse with hetero-
sexual domestic violence and reviews the emerging legal doctrines
found in a diversified society. The topic areas that this Article exam-
ines include: (II) The Changing Society, (III) Current Nationwide
Population Survey, (IV) Domestic Partnership, (V) Heterosexual Do-
mestic Violence Statistics, (VI) Homosexual Domestic Violence Statis-
tics, (VII) Child Visitation and Custody Concepts and (VIII) Contem-
porary Issues in a Changing Society.
II. THE CHANGING SOCIETY
There are several million non-traditional families throughout the

United States.1 5 Many families consist of gays or lesbians who are rais-
ing children with their life partner. 6 These families have children ei-
vents the escalating cycle of violence that occurs in many family violence situations.
Trivializing this type of domestic violence is not only contrary to the intent of the Legis-
lature, it also misses an opportunity for prevention or early intervention.
N.J. ATTY. GEN. & N.J. Sup. CT., DOMESTIC VIOLENCE PROCEDURES MANUAL, §§ ll-V (1991).
11 N.J. STAT. ANN. § 2C:25-23 (West Supp. 1992) (a law enforcement officer shall dissemi-
nate and explain to the victim a written notice which includes a statement that the victim has the
right to file a criminal complaint against the attacker).
"sN.J. STAT. ANN. § 2C:25-29b(3) (West Supp. 1992) (an order providing for visitation).
" N.J. STAT. ANN. § 2C:25-29b(I 1) (West Supp. 1992) (an order awarding temporary cus-
tody of a minor child).
l' Nan D. Hunter & Nancy D. Polikoff, Custody Rights of Lesbian Mothers: Legal Theory
and Litigation Strategy, 25 BUFF. L. REV. 691 (1976). Estimates indicate that there are approxi-
mately 1.5 million lesbian mothers in this country.
lB GAY AND LESBIAN PARENTS (Frederick W. Bozett ed: 1987). See also A.C. v. C.B., 829
P.2d 660, 665 (N.M. Ct. App. 1992) (court acknowledged the authorities cited in the amicus
briefs submitted by Lambda Legal Defense and Education Fund, Inc., and National Center for
Lesbian Rights as providing insight into non-traditional parenting).
1992-93] DOMESTIC VIOLENCE
ther by means of artificial insemination of a lesbian partner" or

through adoption. 8
Newsweek dedicated a special edition entitled "The 21st Century
Family" that featured an article in which gay and lesbian couples chal-
lenge the traditional definition of family. 9 The article revealed that
throughout the United States, the concept of a traditional family (a
mother and father living with their children under eighteen, or steppar-
ents and stepchildren) now includes a substantial number of non-tradi-
tional families, including homosexual couples.2" The article also re-
ferred to an estimate of 5000 to 10,000 lesbians who have borne
children into lesbian families, and hundreds of gay and lesbian couples
who have adopted children. 2 The prevailing non-traditional family is
not defined by a marriage license, but by the emotional and financial
interdependence of the parties in the relationship.2 2
Nonetheless, the Newsweek publication conducted a survey mea-
suring public sentiment on the following question: "Should unmarried
couples, including homosexual couples, have the same legal rights as
23
married couples?" The reported results were:
11 NATIONAL CENTER FOR LESBIAN RIGHTS. LESBIANS CHOOSING MOTHERHOOD: LEGAL IM-
PLICATIONS OF DONOR INSEMINATION AND CO-PARENTING (2d ed. 1991).
Though artificial insemination by donor has recently become popular among lesbians as
the preferred method of conception, it is not a new procedure. A few doctors were
already experimenting with donor insemination as long ago as the eighteenth century.
By the turn of this century, this practice had become known as 'ethereal conceptions.'
While all aspects of the early experiments in donor insemination were under the control
of the doctors performing them, lesbians choosing donor insemination today are making
their own decisions about selecting sperm donors and insemination methods, and are
drafting parenting agreements that reflect their own needs and life situations.
Id.
I8 In re Evan, 583 N.Y.S.2d 997 (Sur. Ct. 1992) (Surrogate Judge Preminger approved the
adoption of a six year-old boy by the lesbian partner of the child's natural mother who had been
artificially inseminated. The decision was the first such adoption approved in the state of New
York).
Is Jean Seligman, Variations on a Theme, Gay and Lesbian Couples, NEWSWEEK, (Sp. ed.
"The 21st Century Family"), Winter/Spring 1990, at 38.
20 Id. at 39.
" Id. Such non-traditional familial relationships are commonplace according to Roberta
Achtenberg, Executive Director, National Center for Lesbian Rights. Id.
2 Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet
the Needs of Children in Lesbian-Mother and Other Nontraditional Families 78 GEo. L.J. 459
(1990).
23 "For Better or Worse?" In a Newsweek poll, the Gallup Organization interviewed a na-
tional sample of 757 adults by phone October 1-4, 1989. The margin of error was plus or minus
four percent. Some "don't know" and "other answers" were omitted. NEWSWEEK, (Sp. ed. "The
21st Century Family"), Winter/Spring 1990, at 18.
YES NO
Unmarried Couples 33% 61%
Homosexual Couples 23 % 69 %
Similarly, a comparable survey taken from the Times/CNN publi-
cation on whether homosexual couples should derive certain benefits
revealed an affirmative response to granting benefits.2 4 The same sur-
vey, however, indicated a high degree of opposition to homosexual mar-
riages and adoptions."5 The reported responses were as follows:
NOT
CATEGORY YES NO SURE
Inherit each others property 65 % 27 % 8%
Receive medical and life
insurance benefits from a
partner 54% 37% 9%
Homosexual couples should be
allowed by law to marry 23 % 69% 8%
Homosexual couples should be
legally permitted to adopt
children 17% 75% 8%
Currently, marriage is not a legal option that gay and lesbian
couples can exercise. However, these de facto homosexual families are
creating unusual issues that challenge established legal precepts. These
familial affiliations have caused a dramatic shift in the traditional fam-
ily concept. The new family concept is functional and characterized by
intimacy, intensity, continuity and commitment among their mem-
bers.26 A family is a collection of persons living together as a single
group under one roof, as a unit of permanent and domestic character.
Legal or moral interdependence among household members and a de-
gree of permanency or continuity of commitment are characteristics
that distinguish mere roommates from family members. 2e The bold,
24 Walter Isaacson, Should Gays Have Marriage Rights? TIME, Nov. 20, 1989, at 101. (tele-
phone poll of 1000 adult Americans taken for Time/CNN on October 9-10, 1989 conducted by
Yankelovich Clancy Shulman. The sampling error is plus or minus three percent).
25 Id. at 102.
26 See Eloise Salholz et al., The Future of Gay America, NEWSWEEK, Mar. 12, 1990, at 20.
2 This definition of family was advocated in 1988 by Prof. Thomas F. Coleman of The Fam-
ily Service America, a nonprofit organization founded in 1911, with a network of 290 members
throughout the United States and Canada.
2s Id.
1992-931 DOMESTIC VIOLENCE
clear characteristics that previously identified the traditional nuclear

family are becoming the exception."
III. CURRENT NATIONWIDE POPULATION SURVEY
Every ten years, the United States Census Bureau conducts a na-
tionwide population head count.30 However, the Census Bureau does
not collect population data based upon sexual orientation or homosex-
ual relationships. Although actual official tabulations do not exist, legal
advocates for gay and lesbian causes have proposed estimated popula-
tion statistics for homosexuals.3 1 Common resources are social scien-
tists' studies conducted on small population samplings. After extrapola-
tion to the population at large, such studies propose that 10% of the
population of the United States is homosexual. 32 Although the figures
are unconfirmed, researchers have concluded that there are 11 million
lesbians in America, or one out of every ten women, 13-20% of whom
are mothers.33 The conclusion derived from the above premise is that
there are approximately 1.5 to 5 million lesbians who are mothers in
this country, many of whom are raising children with their life part-
ners. Social scientists have estimated that of approximately 11.6 mil-
lion male homosexuals, 2.5 million live as couples. 4
The Census Bureau annual survey depicts the composition and
profile of the American family household. The 1990 population surveys
estimated a total of 4.47 million households made up of unmarried
adults, of which 1.6 million households were composed of two unrelated
same-sex adult cohabitants. 35 The same-sex classification is not corre-
"' Brief Amici Curiae for Family Service America at 14, Braschi v. Stahl Assoc. Co., 543
N.E.2d 49 (N.Y. 1989).
30 U.S. CONST., Art. I, § 2, cl. 3 requires an "enumeration of persons" every 10 years for the
purpose of apportioning congressional representatives and among the states according to their re-
spective populations. The U.S. Census is administered by the Bureau of Census, under the juris-
diction of the Department of Commerce. 13 U.S.C. § 2 (1989).
" See generally several recently filed Briefs Amicus Curiae of Lambda Legal Defense and
Education Fund, by Paula L. Ettelbrick, Legal Director. Founded in 1973, Lambda is the oldest
and largest national legal organization devoted to gay and lesbian legal rights.
"' D. McWhirter and A. Mattison (1984), studied 156 gay male couples and estimated that
there are 2.5 million male couples in the American population of 220 million.
" Hunter & Polikoff, supra note 15, at 691 n.I.
a4 ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR. IN THE HUMAN MALE (1948) (research
demonstrated that at least 10% of the American male population had an emotional attraction for
other men and engaged in homosexual conduct).
11 ARLENE F. SALUTER. US. BUREAU OF THE CENSUS, SERIES P-20. No. 450. MARITAL STA-
TUS AND LIVING ARRANGEMENTS: MARCH 1990 at 73 (May 1991).
lated to gays or lesbians per se; nevertheless, the household occupants

are identified by the same gender. There is also a category for same-sex
adult cohabitants with children age fifteen years or younger. Arguably,
this comprehensive group represents a non-traditional familial relation-
ship entitled to domestic violence protection.
Current Population Survey (C.P.S.), effective March 1990
Table Eight-Estimates of Households with two unrelated adults:
Age profile, AGE CATEGORY MALE FEMALE
two unrelated
same-sex adult Under 25 years 251,000 259,000
cohabitants 25 to 34 years 357,000 247,000
in a household 35 to 44 years 112,000 56,000
without children 45 to 64 years 81,000 79,000
65 years and over 7,000 45,000
TOTAL: 808,000 686,000
Age profile, AGE CATEGORY MALE FEMALE

two unrelated
same-sex adult Under 25 years 4,000 35,000
cohabitants 25 to 34 years 3,000 53,000
in a household 35 to 44 years 4,000 10,000
with children 45 to 64 years 3,000 4,000
under 15 years 65 years and over -0- 5,000
of age
TOTAL: 14,000 107,000
Totals: same-sex male households 822,000

Totals: same-sex female households 793,600
Recapitulation
Total households-same sex adult cohabitants 1,616,000
Total households-opposite sex adult cohabitants 2,856,000
TOTAL: 4,472,00036
The statistical data alone does not represent a persuasive argu-

ment proving anything. However, it is sufficient to recognize that be-
tween the estimated high and low ranges presented, there are a sub-
stantial number of same-sex cohabitants involved in non-traditional
relationships. These relationships are unleashing new demands, sup-
36 Id.
ported by different social behaviors and novel legal theories, on the

processes that mold and shape legal jurisprudence.
The defined legal issue is whether the relationship between persons
in non-traditional families has a legitimate class status position, either
evolved from the traditional protected family unit or otherwise, that is
entitled to legitimacy on any other basis. 7 Furthermore, a question
raised is whether the demographic strength of the gay and lesbian pop-
ulation is sufficient to provide political clout in support of the non-tradi-
tional family, in order to qualify for state legislative prescriptive
rights.36 The process involves the continual, unrelenting confrontations
that challenge established legal precedents and public policies, which
produces a reconsideration and re-evaluation of settled legal
principles. 9
Contemporary legal jurisprudence is constantly evolving. Propo-
nents of the non-traditional family aspire to legal and equitable accept-
ance equal to that of married heterosexuals. 4 0 This hypothesis is clearly
and unmistakably illustrated by the activity within several municipali-
ties and large American cities that have, by their governmental action,
chosen to create a legal entity, popularly known as domestic
partnership. 1
IV. DOMESTIC PARTNERSHIP
A recent phenomenon, commonly known as "Domestic Partner-

ship," as created by several municipal governments in the United
States, is acquiring sporadic recognition.42 Domestic partnership is a
legal mechanism used to recognize homosexual couples and unmarried
"' Michael H. v. Gerald D., 491 U.S. 110, 124 (1989) (plurality opinion, Scalia, J.).
The practice of discrimination based upon one's sexual orientation is now legislatively pro-
hibited in five states. See 1991 Conn. Acts 91-58 (Reg. Sess.); 1991 Haw. Sess. Laws 378; MASS.
ANN. LAWS ch. 151B, § 18 (Law. Co-op. 1989); N.J. STAT. ANN. § 10:5-1 (West 1993); Wis.
STAT § 101-22 (1989).
" ROBERTA ACHTENBERG. NATIONAL CENTER FOR LESBIAN RIGHTS PRESERVING AND PRO-
TECTING THE FAMILIES OF LESBIANS AND GAY MEN (1990). The New York based Lambda Legal
Defense and Education Fund and the San Frahcisco based National Center for Lesbian Rights,
the two oldest homosexual civil rights organizations in the country, have bombarded the courts
with cases challenging the settled family definition.
0 See generally Braschi v. Stahl Assoc. Co., 543 N.E.2d 49 (N.Y. 1989); NEWSWEEK (Sp.
ed., "The 21st Century Family") Winter/Spring 1990.
41 THOMAS L. COLEMAN. RIGHTS OF DOMESTIC PARTNERS, Chapter 4 "Domestic Partner-
ship" Concept Emerges, Action by Municipal Governments (U.S.C. Law Center 1989).
4' A.C.L.U. (New York) LEGISLATIVE BRIEFING SERIES: DOMESTIC PARTNERSHIP.
heterosexual couples who publicly declare an emotional and economic

commitment to each other.4 3 The process requires the couples seeking
domestic partnership status to proclaim their relationship by registering
with the city clerk."
A. Historical Beginnings of Domestic Partnership
The concept originated through a strong political lobbying effort

by the homosexual community in San Francisco, California. In 1982
the Board of Supervisors introduced a "domestic partnership" ordi-
nance.4 5 This ordinance provided for registration of domestic partners,
group health insurance membership to domestic partners of city em-
ployees, and urged the Civil Service Commission to provide for be-
reavement leave, family sick leave, hospital and jail visitation rights on
behalf of their domestic partners.46
The Board of Supervisors twice passed this legislation, but each

time, then Mayor Dianne Feinstein vetoed the legislation as too costly
to implement. A task force was then appointed to examine the health
benefits issue and make recommendations. The task force unanimously
recommended that domestic partner coverage be extended only to gay
and lesbian couples, and that the city should pay at least a portion of a
domestic partner's insurance premium.47 That recommended legislation
failed to pass the Board of Supervisors. Strong opposition came from
the Mayor, the religious community, which morally condemned the re-
lationships, and from some members of the homosexual community
who believed the proposed legislation discriminated against heterosex-
ual unmarried couples. Throughout the period from 1984 to 1988, the
domestic partnership movement lay dormant and no other domestic
partnership legislation was proposed.4 8
Then, in 1988, Harry Britt, President of the Board of Supervisors,

introduced new domestic partnership legislation focused upon extended
family units consisting of siblings, blood relatives and other relation-
43 Id.
44 Id.
" See generally L.
BRILL ET AL., INTRODUCTORY POLICY ANALYSIS: HISTORICAL BACK-
GROUND OF THE SAN FRANCISCO DOMESTIC PARTNERSHIP ORDINANCE (1988).
46 Id.
47 Id.
48 Id.
ships comparable to married couples.4 9 The proposed legislation would

have extended recognition to a "domestic partner" or a "significant
other" of the same or opposite sex. These relationships share the same
commitments and necessities as heterosexual couples, but lack a mar-
riage license, and therefore, are prohibited from receiving various bene-
fits normally granted to spouses of city employees. The benefits would
include: bereavement leave; family sick leave; hospital and jail visita-
tion rights; access to university housing reserved for married couples;
family discounts offered by businesses; coverage under health insur-
ance; and retirement plans.
The Human Rights Commission (HRC) held a public hearing on
March 8, 1989. Everyone supported the domestic partnership concept
except representatives of the Catholic Archdiocese."0 On April 21,
1989, the HRC's recommendations were that domestic partners
demonstrated commitment equal to that of heterosexual married
couples and that the city should enact legislation recognizing domestic
partnerships. The HRC requested that the Health Service System
Board study the feasibility of adding domestic partners or extended
family members to city health benefit plans.51 On May 23, 1989, the
Board of Supervisors voted unanimously to approve the ordinance rec-
ognizing domestic partnerships. 2 This ordinance recognized unions of
homosexuals and unmarried heterosexual couples. 5 3 Immediately, the
Catholic Archdiocese and Jewish religious organizations collected
27,000 signatures and forced the ordinance to be placed as a referen-
dum on the November 1989 ballot.54
The domestic partnership referendum was narrowly defeated by
less than 2000 votes, 55 (84,060 were "no" votes, representing 50.5%
" Domestic Partners Ordinance No. 216-89-1, Proposed by Supervisor Harry G. Britt, Board
of Supervisors.
50 HUMAN RIGHTS COMMISSION OF SAN FRANCISCO, INVESTIGATION INTO DOMESTIC PART-
NERSHIP. MARITAL STATUS. AND EXTENDED FAMILY POLICIES (August 1989).
51 Id.
" San Francisco Voter Legislation Recognizing Unmarried Partners, N.Y. TIMES, May 24,
1989, at A20.
"' Domestic Partnership § 4002(a):
(a) Domestic Partnership Defined. Domestic Partners are two people who have chosen to
share one another's lives in an intimate and committed relationship of mutual caring, who live
together and have signed a Declaration of Domestic Partnership in which they have agreed to be
jointly responsible for basic living expenses incurred during the Domestic Partnership, and have
established their partnership under Section 4005 of this Article.
Religious Right Blocks Partners Law, THE GUIDE (Boston), Aug. 1989.
Plans for Giants and Gay Rights Lose, N.Y. TIMES, Nov. 9, 1989, at B15.
compared to 82,342 "yes" votes, representing 49.5%)."' The Church

opposition was concerned with eroding traditional family values, while
other opponents argued that the additional health benefits would be too
expensive."
In 1990 a revised domestic partner bill was introduced and placed

on the November 1990 ballot. Harry Britt, President of the Board of
Supervisors, proposed a registration of "intimate committed relation-
ships, including those of lesbians and gay men who otherwise are de-
nied the right to identify the partner with whom they share their
lives." 5 8 This new bill was highly publicized as a proposal that had
nothing to do with money or health benefits, and incurred no cost to the
taxpayers."
The Domestic Partnership Bill was designated as Proposition K on

the November 6, 1990 election. 0 Although 54% of the registered vot-
ers went to the polls, the homosexual turnout was close to 85%. The
legislation passed with a ratio of 55 %-45 %."' The Board of Supervi-
sors specifically asked Mayor Art Agnos to sign the legislation on Janu-
ary 15, 1991, in order that it would go into effect thirty days later, on
February 14, 1991, Valentine's Day.6"
Thus, the homosexual community finally secured recognition after

eight years of legislative proposals, rejections and denials. The victory
was largely symbolic, though, as it conferred no additional benefits,
other than recognition through a registration process.13 The San Fran-
cisco Clerk's Office reported that as of August 7, 1991, 833 couples
had publicly registered and four couples had terminated registration.64
66 Janis Astor, Domestic Partners on SF Ballot Again, N.Y. OUTWEEK, Sept. 12, 1990.
' See supra notes 55-56.

" San Francisco Charter, Initiative Ordinance U, Recognition of Domestic Partnership, CH-
366.25.
" See supra note 56.
60 John M. Leighty, Voters Approve Historic Domestic-Partnership Ordinance, ADVOCATE,
Dec. 18, 1990, at 59.
61 Id.
62 Katherine Bishop, Not Quite a Wedding, but Quite a Day for Couples by the Bay, N.Y.
TIMES, Feb. 15, 1991, at A16.
63 Id.
" See Appendix III, San Francisco sources.

B. Current Status of Domestic Partnership
On February 21, 1985, the West Hollywood city council unani-

mously adopted Ordinance No. 22, which created and regulated domes-
tic partnership. The ordinance represents model domestic partnership
legislation. (Reprinted in Appendix III)
Presently, twelve American cities have enacted domestic partner-
ship legislation.6" Unlike San Francisco, the other eleven cities did not
experience difficulties in creating domestic partnership. The communi-
ties' effective dates, profiles, number of registered domestic partners
and enumerated benefits of domestic partnership are set out in Appen-
dix III.
C. Domestic PartnershipLegal Analysis
Domestic partnership is not a legal substitute for marriage. Only

persons in a heterosexual relationship can marry. This legal interpreta-
tion has been consistently upheld in courts in many jurisdictions.
For example, the Minnesota Supreme Court upheld a county stat-
ute prohibiting same-sex marriages. 66 The Kentucky Court of Appeals
declared no constitutional issue was involved in denying two Kentucky
women a marriage license.67 The Washington Court of Appeals, in up-
holding the denial of a marriage license to two men, held such denial
did not violate the constitutional provision that equality of rights and
responsibilities under the law shall not be denied or abridged on ac-
count of sex.6 8 This latter challenge encompassed arguments under the
United States Constitution, Washington State Constitution and a re-
cently ratified State Equal Rights Amendment (ERA). The courts re-
jected those arguments and concluded this was not the intent of the
ERA. The Ninth Circuit Court of Appeals held that Congress intended
" Paula L. Ettelbrick, Domestic Partnership Legislation: A National Overview (October

1989). Domestic PartnershipInformation Packet, prepared by American Civil Liberties Union of
Northern California, Inc. (1990) Matthew Coles, Managing Attorney. Domestic Partnership
Plans Proliferate,published by Partners Newsletter for Gay & Lesbian Couples (Nov. 12, 1990).
Vol. 7, No. 2, at 11-12, Spring 1992, reported that more than 100 public and private employers
now recognize domestic partners and extend to them some of the rights accorded married couples.
Stevie Bryant & Demian, Ed. D., Publishers/Editors. Current Recognition of Alternative, Non-
traditionaland Diverse Families, published by National Gay and Lesbian Task Force and Les-
bian & Gay Families Project (1991).
e Baker v. Nelson, 191 N.W.2d 185, appeal dismissed, 409 U.S. 810 (1971).
e Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973).
88 Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974).
570 JOURNAL OF FAMILY LAW [Vol. 31
for the term "spouse" to apply to heterosexual marriages only and that
there is no such preferential designation given to homosexuals. 69 A
Pennsylvania Court of Record rejected any possibility of a common law
70
marriage occurring between homosexual partners.
Notwithstanding the prohibition against homosexual marriages in
the United States, the law of the land has been settled regarding homo-
sexual behavior. The United States Supreme Court decreed that a
State can prohibit anal intercourse between consenting adult homosex-
uals. There is no constitutional or fundamental right of privacy ex-
tended to homosexuals whose sexual conduct includes participation in
acts of consensual sodomy.7 '
Undoubtedly, a domestic partnership registered with the city
clerk's office represents strong compelling evidence that a non-tradi-
tional familial relationship exists. This raises the question as to whether
the entity is legitimate within the state of origin. Presently, the legiti-
macy issue has not been tested in any court. Nevertheless, two funda-
mental issues arise under the Full Faith and Credit Clause of the
United States Constitution:72 whether the forum state recognizes the
local acts created by the political subdivision of a sister state and
whether the concept of domestic partnership offends the social and
public policy of the forum.
The Full Faith and Credit Clause is construed as pertaining only
to statutes that are within the legislative jurisdiction of the enacting
state.' The courts of the forum will not take judicial notice of local
laws or municipal creations.7
As a general principle, every state is entitled to enforce within its
courts the state's own legislative enactments. The question is whether a
homosexual domestic partnership created in a sister state is acceptable
in the forum state. The challenge is to persuade the forum to recognize
the conflicting statute of another state. The burden is to balance the
conflicting interests of the forum and the other state and establish upon
o Adam v. Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982).
70 De Santo v. Barnsley, 476 A.2d 952 (Pa. Super. Ct. 1984).
" Bowers v. Hardwick, 478 U.S. 186 (1986).
" 28 U.S.C. § 1738 (1988).
See generally 16A AM. JUR. 2D Constitutional Law § 863-64 (1992) and cases cited
therein.
'" See, e.g., Edmonds v. State, 39 S.E.2d 24 (Ga. 1946) (full faith and credit applies only to
state records and proceedings); Anthony Doll & Co. v. Hogan, 53 P.2d 649 (N.M. 1936) (state
statutes are proved by introducing the official statutory publication into the legal proceeding).
1992-93] DOMESTIC. VIOLENCE
some rational basis that the interests of the foreign state are superior to
75
those of the forum.
Although domestic partnership is not a legal substitute for mar-
riage, its pragmatic effect has been' to validate non-marital relation-
ships. 76 As such, domestic partnership may satisfy the need to allow
non-conforming life choices within the expanding definition of the
American family.77 Domestic partnership may also represent the
emerging "super principle" that Lawrence Friedman claims is about to
78
give birth to new legal rights from America's pluralist society.
V. DOMESTIC VIOLENCE STATISTICS AND EQUAL PROTECTION
In 1990 most violent crimes in the United States were committed

by strangers. 79 (Appendices IV and V). Violent crimes involving stran-
gers occurred mostly on the street, while those involving acquaintances
or intimates occurred mostly in the victim's home. 80 Among violent
crimes, 25 % of women and 4% of men were victimized by intimates.8 1
Domestic violence offenders against women were spouses (9%), ex-
spouses (35%) and boyfriends or ex-boyfriends (32%);82 and of re-
ported violent crimes by intimates, 85 % were assaults, 11 % were rob-
" See generally 16A AM. JUR. 2D Constitutional Law § 867 (1992) (citing State Farm Mut.
Auto. Ins. Co. v. Duel, 324 U.S. 154 (1945); Williams v. North Carolina, 317 U.S. 287 (1942);
Alaska Packers Ass'n v. Indust. Accident Comm'n, 294 U.S. 532 (1935)).
76 "The lesbian and gay community has laid the groundwork for revolutionizing society's
views of family. The domestic partnership movement . . . validates non-marital relationships."
Paula L. Ettelbrick, OUTLOOK (Fall 1989).
"' Concourse Village, Inc. v. Bilotti, 509 N.Y.S.2d 274, 277 (Civ. Ct. 1986), rev'd, 531
N.Y.S.2d 850 (Sup. Ct. 1988). Justice Rosen, writing for the Civil Court, cited the opinion in In
re Adult Anonymous 11, 452 N.Y.S.2d 198 (App. Div. 1982), where, in approving the adoption of
an adult male by another male, Justice Asch stated:
The "nuclear family" arrangement is no longer the only model of family life in
America. The realities of present day urban life allow many different types of nontradi-
tional families . . . . In any event, the best description of a family is a continuing
relationship of love and care, and an assumption of responsibility for some other person.
452 N.Y.S.2d at 201.
7 LAWRENCE M. FRIEDMAN. TOTAL JUSTICE (1985).
"' The Bureau of the Census has administered the National Crime Victimization Survey
since 1972. CRIMINAL VICTIMIZATION IN THE UNITED STATES, 1990, NCJ-134126 (Feb. 1992).
80 Id. at 67.
Sl CAROLINE W. HARLOW. U.S. DEP'T. OF JUSTICE. FEMALE VICTIMS OF VIOLENT CRIME,
NCJ-126826, at 2, tbl. 3 (Jan. 1991).

82 Id. at 2.
beries, and 3% were rapes. 83 Of the assaults, approximately 25% in-

volved a weapon or serious injury to the victim. 8
At least three offenses within six months were reported by 20% of
women victimized by a spouse or ex-spouse;8 5 such "series crimes" ac-
counted for 15 % of the assaults by current or ex-boyfriends or family
members other than spouses or ex-spouses." 6 Women victimized by
strangers reported the incident to the police 57% of the time."7 Stop-
ping the incidents motivated nearly 50% of women victimized by inti-
mates compared to less than 33% of women victimized by others.8 8
Some 48 % of females victimized by intimates felt that the violence was
a private matter, or took care of it themselves. 89 Fear of reprisal pre-
vented victims from reporting to police three times more often when
the offender was an intimate rather than a stranger."
The FBI reported that in 1989, 28% of all female murder victims
were slain by husbands or boyfriends."' Assaults by current or ex-
spouses or boyfriends involved physical attacks (70%) and threats
made verbally or by showing a weapon (30%).92 Of the victims, 85%
suffered injuries such as cuts, bruises and black eyes.93 Victims of non-
intimate offenders were less likely to receive medical treatment.9 ' Vic-
tims of intimate offenders resisted 81 % of the time, with twice as many
using passive (verbal or evasive) as opposed to active (fighting back or
using weapons) resistance.9 5
Every state has enacted a form of domestic violence legislation.
There is, however, a fundamental difference among those states in
which the legislature has chosen either to expand or curtail jurisdic-
tional requirements (Appendix I). The issue has divided the states into
diametrically opposed jurisdictional positions. Arguably, thirty-seven
states now provide protective orders to domestic violence victims who
83 Id. at 2, tbl. 4.
81 Id. at 2.
IId. at 3, tbl. 5.
Id. at 3.
I'
87 Id. at 3, tbl. 6.
88 Id. at 3, tbl. 7.
" Id. at 5, tbl. 8.
iOd.
81 Id. at I.
82 Id. at 6.
83 Id.
94 Id. at 6, tbl. II.
88 Id. at 6, tbl. 12.
are same-sex, non-related and cohabiting with the offender, whereas

ten states deny such protection to victims in a same-sex, non-related
relationship. In four states, the statute is subject to court interpretation
(Appendix II).
The Equal Protection Clause of the Fourteenth Amendment man-
dates that no state shall cause disparity in treatment between classes of
individuals whose situations are arguably indistinguishable.9" The
United States Supreme Court has directed that three factors must .be
considered in order to determine whether a law violates the Equal Pro-
tection Clause: (1) the character of the classification in question; (2)
the individual interest affected by the classification; and (3) the govern-
mental interest asserted in support of the classification.9 7
The Equal Protection Clause requires the sovereignty to produce a
rational reason founded upon a legitimate and important state purpose
for excluding police protection based upon gender classification. 98
Every sovereign jurisdiction shares the collective responsibility and ob-
ligation to protect all of its citizenry from domestic violence behavior.
There are no justifiable legal reasons that permit a state to deny do-
mestic violence protection to a person based upon the cohabitant's gen-
der.9 9 It is a fundamental principle that no sovereignty shall authorize
disparate selection and discriminatory execution of its police power. 0 0
This Article will endeavor to reveal the pervasiveness of non-related
No state shall "deny to any person within its jurisdiction the equal protection of the laws."
U.S. CONST, amend. XIV, § I.
97 Dunn v. Blumstein, 405 U.S. 330, 335 (1972).
"9 Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982); Mills v. Habluetzel, 456
U.S. 91 (1982); Craig v. Boren, 429 U.S. 190 (1976), Mathews v. Lucas, 427 U.S. 495 (1976);
Frontiero v. Richardson, 411 U.S. 677 (1973).
" See U.S. CONsT. amend. XIV, § 1.
16A AM. JUR 2D Constitutional Law § 452 (1992).
The Supreme Court laid down the rule which is now the accepted and settled principle,
that the due process clause requires that state action, through one agency or another,
shall be consistent with the fundamental principles of liberty and justice which lie at
the base of all our civil and political institutions.
Id. at 227 n.20 (citing Poulos v. New Hampshire, 345 U.S. 395 (1953); Buchalter v. New York,
319 U.S. 427 (1943); De Jonge v. Oregon, 299 U.S. 353 (1937); Grosjean v. American Press Co.,
297 U.S. 233 (1936); Mooney v. Holohan, 294 U.S. 103 (1935); Powell v. Alabama, 287 U.S. 45
(1932); Hebert v. Louisiana, 272 U.S. 312 (1926).
The principle was significantly developed in Truax v. Corrigan, 257 U.S. 312 (1921). "Class
legislation, discriminating against some and favoring others, is prohibited, but legislation which, in
carrying out a public purpose, is limited in its application, if within the sphere of its operation it
affects alike all persons similarly situated, is not within the Amendment." Id. at 333 (quoting Mr.
Justice Field, who delivered the opinion in Barbier v. Connolly, 113 U.S. 27, 32 (1885)). The
Truax Court reiterated the principle that:
same-sex cohabitants, those household families consisting of gays, lesbi-

ans and their lover-partners, and their entitlement to legal protection
under constitutional principles.
VI. HOMOSEXUAL DOMESTIC VIOLENCE
Domestic violence has existed in homosexual relationships for cen-

turies. One of the earliest recorded cases of lesbian domestic violence
occurred in Germany in 1721.101 The trial transcript documented a his-
tory of domestic violence detailing frequent violent assaults. The court,
however, was concerned with the sexual crime of lesbianism rather
than the brutal attacks. The attacker was sentenced to death and the
victim was banished. 0 In the United States, many such acts of domes-
tic violence may go unreported. 0
Yale University instituted a pilot project in 1986-87 analyzing
temporary restraining orders issued for battered women. 10 4 They dis-
covered that non-traditional relationships of gay and lesbian lovers
were qualifying for temporary restraining orders under applicable Pre-
vention of Domestic Violence statutes. The available evidence was so
overwhelming that Yale University re-evaluated their project to include
the domestic violence phenomenon occurring in gay and lesbian
relationships.10 5
A comprehensive summary of the present status of domestic vio-
lence occurring in homosexual relationships is found in a research pa-
per presented at the Third National Conference of Family Violence
Researchers. 0 6 One proposed theory was that violence is more likely to
[lI]mmunity granted to a class, however limited, having the effect to deprive another
class, however limited, of a personal or property right, is just as clearly a denial of
equal protection of the laws to the latter class as if the immunity were in favor of, or
the deprivation of right permitted worked against, a larger class.
Id. at 333.
101 Ruthann Robson, Lavender Bruises: Intra-Lesbian Violence, Law and Lesbian Legal The-
ory, 20 GOLDEN GATE U.L. REV. 567, 568 n.4 (1990).
102 Id. at 568.
13 Id. at 570. Ruthann Robson provides a succinct historical background of intra-lesbian
violence in the United States.

'0 Gary Brown et al., Comment, Starting a TRO Project: Student Representation of Bat-
tered Women, 96 YALE L.J. 1985 (1987).
108 Id. at 2011.
I" M.J. Bologna et al., Violence in Gay Male and Lesbian Relationships: Implications for
Practitioners and Policy Makers - Running Head: Violence in Homosexual Relationships, The
University at Albany, State University of New York. Courtesy of Lisa J. Bishop, Ph.D.
occur in heterosexual cohabiting couples than in married couples."0 7

The violence exhibited is a learned behavior because the adults, as chil-
dren, had witnessed violence as an acceptable method of conflict resolu-
tion. 08 Gay and lesbian couples solve conflicts in ways similar to those
used by heterosexuals. 0 9 Ultimately, the researchers concluded that
18 % of gay men and 40% of lesbian women reported being victims of
violence in their current or most recent relationship. In addition, lesbi-
ans seem to be more aggressive than both gay men and heterosexual
women profiled in other studies." 0 Furthermore, gay men in this study
reported being victims of violence more often than heterosexual men in
other violence research."' Homosexual violence occurs in all socio-eco-
nomic levels; however, it occurs more often at lower socio-economic
levels." 2 Finally, it was reported that lesbians receive less societal and
familial support for their relationship and experience greater social iso-
lation than gay men. " '
A 1986 study of lesbian violence discussed contemporary myths
about lesbian violence." 4 Men are expected to be aggressive and even
violent, while women are socialized to be passive. Should a woman be-
come violent with a man, it is excused as an aberrant personality or life
situation. However, when a woman is violent with another woman, the
situation is often disparagingly depicted as a "cat fight." Now consider
the same woman-to-woman violence in a lesbian relationship. The het-
erosexual society denies the existence and the sanctity of the relation-
ship. Therefore, heterosexuals have no context within which to under-
stand lesbian violence.
The study disclosed that 47% of the lesbian victims and 68 % of
the abusers reported physical abuse in their family of origin. Studies of
heterosexual battered women and their partners showed that 30-70%
had experienced violence in their family of origin. The hypothesis is
that lesbians, like heterosexual victims and abusers, have a similar
background of violence within their family of origin and gravitate to a
situation where domestic violence is perpetuated.
107 Id. (Sack, Keller & Howard 1982).

,08 Id. (Straus, Gelles & Stainmetz 1980).
Id.
Io0 (DeCecco & Shivey 1978).
110 Id. (Cate, et al. 1982; Makepeace 1981; Straus, et al. 1980).
Id.
...Id. (Gelles 1980; Straus, et al. 1980).
Id. (Kaufman, et al. 1984).
" V. Kanuha, Violence in Intimate Lesbian Relationships, unpublished manuscript (1986).
Courtesy of Lisa J. Bishop, Ph.D.
Gay and lesbian relationships have sustained unreported domestic

violence for several reasons:115 (1) fear that the heterosexual commu-
nity will associate abuse as a homosexual characteristic, i.e., their prob-
lem rather than aggressive behavior; and (2) the gay and lesbian com-
munity engages in self-denial.
On the other hand, within the lesbian culture, violence is perceived
as physical coercive power. The battered lesbian would disclose a
"coming out" if she sought assistance, which may not be a viable op-
tion. Furthermore, homophobia and ignorance by social service profes-
sionals discourages disclosure of homosexual domestic violence.116 Nev-
ertheless, the non-disclosure has caused certain myths to formulate
about homosexual domestic violence.
New York City Gay and Lesbian Anti-Violence Project publishes
a Domestic Violence brochure outlining several myths that pertain to
17
lesbian battering:'
MYTH: Battering and abuse do not exist in the lesbian community as only
men abuse women.
FACT: Domestic violence does exist in the lesbian community. This is not
a problem limited to heterosexual relationships.
MYTH: Domestic violence only affects certain groups of lesbians.
FACT: Violence and abuse are found in all parts of our community.
MYTH: The problem in lesbian relationships is really fighting or "mutual
battering," and not domestic violence.
FACT: The issue in domestic violence is control. A survivor's needs are
usually subordinated and she often changes her behavior to
accommodate or anticipate her batterer's demands.
MYTH: Lesbians can leave abusive or violent relationships easily.
FACT: Battering relationships rarely are only violent or abusive.
MYTH: Factors such as substance abuse, stress, childhood violence or
provocation really cause battering or abuse.
FACT: A batterer chooses to be violent and is responsible for her behavior.
C.E. Kelly & M.A. Warshafsky, Partner Abuse in Gay Male and Lesbian Couples (July
1987). Paper presented at the Third National Conference of Family Violence Researchers, Dur-
ham, N.H. Courtesy of Lisa J. Bishop, Ph.D.
", C.A. Paisley & J.E. Krulewitz, Same-Sex Assault: Sexual and Non-Sexual Violence
within Lesbian Relationships (March 1983). Paper presented at the National Conference of the
Association for Women in Psychology, Seattle, WA. Courtesy of Lisa J. Bishop, Ph.D.
'" NEW YORK CITY GAY & LESBIAN ANTI-VIOLENCE PROJECT, Behind Closed Doors, Bat-
tering & Abuse in Lesbian Relationships.
Likewise, there is a similar publication of myths that pertain to gay

battering:'11
MYTH: Domestic violence is not a problem for gay men.
FACT: Since men traditionally have been encouraged to use violence and
power to control others, it has been difficult for gay men to identify
domestic violence in their lives.
MYTH: Domestic violence only affects certain groups of gay men.
FACT: Violence and abuse are found in all parts of our community. No
group, regardless of race, class, ethnicity, age, ability, education,
politics, religion or lifestyle is free from domestic violence.
MYTH: The problem in relationships between gay men is really fighting or

"mutual battering," not domestic violence.
FACT: The issue in domestic violence is control.
There are no available records or scientifically determined statisti-

cal data measuring the extent of domestic violence in the gay popula-
tion. However, some social scientists have estimated that there are
500,000 gay male victims in the United States each year. 11 9
In the fall of 1988, the publishers of Partners Newsletter for Gay
and Lesbian Couples conducted a nationwide empirical survey. 12 0 The
survey covered a wide range of categories, and although this report em-
phasized only domestic violence transpiring in homosexual relation-
ships, the survey illustrated that partner abuse does exist in the gay
and lesbian community and should be considered a significant problem
with serious social ramifications comparable to those found in hetero-
21
sexual relationships.1
118 NEW YORK CITY GAY & LESBIAN ANTI-VIOLENCE PROJECT, Behind Closed Doors, Bat-
tering & Abuse in Relationships for Gay Men.
"9 D. ISLAND & P. LETELLIER, MEN WHO BEAT THE MEN WHO LOVE THEM.
120 Stevie Bryant & Demian, NEWSLETTER, Special Issue: NATIONAL SURVEY RESULTS,
May/June 1990.
1I Survey forms containing nearly 100 questions were distributed to gay churches, commu-
nity organizations and published in gay publications circulated in the United States and Puerto
Rico. Data was collected from the fall of 1988 through the fall of 1989. The survey drew re-
sponses representing a total of 1266 couples: 706 lesbian couples (56%) and 560 male couples
(44%). The average respondent was approximately 35 years old. The relationships averaged
nearly 6 years in length for all couples, although 100 couples had passed their 15th anniversary
together. The lesbian relationships spanned 43 years and 3 gay couples were together for more
than 40 years. The survey revealed that 19% of lesbian couples and 13% of male couples had
been together for a year or less.
Based upon clinical study, a sampling suggests that a significant

proportion of lesbian couples have experienced domestic violence in
their relationship.1 2' Accordingly, the new class of domestic violence
subjects will demand a probative examination on the facts and law as
they relate to heterosexual spouses, in an effort to extend the legal con-
cepts to homosexual relationships.
The survey revealed that domestic violence is prevalent in homosexual relationships. For example,
among lesbian women, 27% experienced domestic violence abuse compared to 29% of the men in
gay relationships. The breakdown was as follows:
HOMOSEXUAL RELATIONSHIPS
WOMEN(%) MEN(%)
Partners
Verbal abuse 17 15
Substance abuse 7 1I
Physical abuse 3 3
TOTAL 27% 29%
The figures overall represent a close comparison with those statistics found in heterosexual
relationships. The breakdown is as follows:
HETEROSEXUAL REALTIONSHIP
Violent Crime
Women victimized by Spouses 9%
person of an intimate 25% Ex-spouses 35%
relationship Boyfriends or
Ex-boyfriends 32%
Other 24%
100%
122 The doctoral dissertation of Vallerie E. Coleman, Ph.D., focused on domestic violence in
lesbian relationships. The subjects, lesbian couples in Southern California, were asked to complete
a detailed questionnaire. Ultimately, 90 couples (180 questionnaires) served as the basis for the
data analysis, some of which is summarized below.
DEMOGRAPHIC DATA
173 Lesbian Age range - 18 to 61 years
7 Bisexual Mean age - 33.6 years
180 Total Mean education level - 16.22
years with a range of 8 years
to 21 years
Mean income level per couple
was 7.83 indicating an income
level between $20,000 and
$24,000 per year
136 Caucasian 166 women reportedly lived
with their partner
20 Latin/Hispanic
10 African American
3 Pacific-Asian
8 Other 37 women reported having
children
VII. CHILD VISITATION AND CUSTODY CONCEPTS
When children are introduced into the homosexual non-traditional

family, what is the established legal relationship between the parties
180 Total 22 women stated that their

children lived with them and this
was equally divided between the
violent and non-violent groups
with I I women in each group
reporting that they lived with
their children
DATA ON VIOLENCE
112 Individuals were classified as non-violent based on both self and partner conflict
tactic scales - modified by researcher
68 Individuals were classified as violent
180 Total
61 Women reported being physically abused;
74 Women reported a history of sexual abuse;
57 Women reported that another family member had been sexually or physically
abused;
98 Women reported that family members had abused substances and this was
evenly distributed between the non-violent and violent couples;
15 Women reported using substances;
12 Women reported that their partner had used substances
48 Couples Non-Violent
42 Couples Violent
90 Total
26 Couples Both Violent
16 Couple Only One Woman Violent
CHARACTERISTICS OF THE VIOLENT GROUP

Self Reporting
Most Frequently Used Number of Individual
Violent Tactic Women Reporting Partner
a) Threw, smashed, hit or kicked something 59 51
b) Pushed, grabbed or shoved her 48 49
c) Slapped her 21 23
d) Threw something at her 19 18
e) Hit or tried to hit her with something 17 18
f) Kicked, bit or hit her with a fist 16 18
g) Abused pets 12 7
h) Choked her 9 7
i) Scratched or hit her in the face, breast or genitals 7 9
j) Beat her up 4 8
and the child? What principles of law determine who is entitled to

child custody and visitation? What factors shall the court consider in
determining child custody petitions filed by a non-parent?
On July 6, 1989, in Braschi v. Stahl Associates,12 the New York
Court of Appeals interpreted an extended family concept as it related
to an important public policy issue regarding the state rent control stat-
utes. The court found a "serious public emergency" had caused the
legislature to regulate landlord/tenant relationships: controlling unjust,
unreasonable, oppressive rents, and preventing the uncertainty, hard-
ship, and dislocation caused by eviction.12 4 Against this background,
the court pronounced its broad interpretation of the term "family,"
which was previously undefined in the rent control code. "Family"
should not be rigidly restricted to those holding a marriage license,
adoption order or genetic history. Balanced against the important pub-
lic policy aspect of the state's rent control laws, and the court's respon-
sibility to sustain, foster and implement rent control laws, the court in
this context redefined "family" to include two adult lifetime partners
Self Reporting
Most Frequently Used Number of Individual
Violent Tactic Women Reporting Partner
k) Cut up or tore her clothing 4 2
I) Forced her to have sex 3 5
m) Carved numbers, figures or words into her skin I I
n) Burned her with a cigarette 0 0
o) Put guns or knives up her vagina 0 1
p) Threatened her with a knife or gun 0 1
q) Used a knife or fired a gun 0 1
TOTAL REPORTS: 220 219
The researcher's self-critique included the following: The diversity within the lesbian community
is not necessarily representative of the women who participated in the study. Furthermore, a self-
report survey does not guarantee the accuracy of the womens' reports. Moreover, there is a need
for further studies, namely:
I) An increase in awareness and understanding of violence in lesbian relationships.
2) Using a larger sample size, differentiating between the perpetrator and the victim.
3) Measuring the harm inflicted, i.e., a slap causing a black eye as opposed to a slap which leaves
no mark.
4) The degree of psychological abuse which occurs in relation to violence.
5) The control factors within the ethnic/racial and socio-economic components of a relationship
and their significant correlation to the violence.
Vallerie E. Coleman, Violence in Lesbian Couples: A Between Groups Comparison (1990) (un-
published Ph.D. dissertation, University of California (Los Angeles)).
12 Braschi v. Stahl Assoc. Co., 543 N.E.2d 49 (N.Y. 1989).
Id. at 52 (citing N.Y. UNCONSOL. LAW § 8581 (McKinney 1987); 9 NEW YORK CITY
RENT AND EVICTION REGS. § 2204.6(d)).
(gays) whose relationship is long-term and characterized by an emo-

tional commitment and financial interdependence. This definition of the
extended family concept draws "a distinction between those individuals
who are in fact genuine family members, and those who are mere
roommates." 126
The extended family concept is construed in legal harmony with

the State's public policy objectives of providing the maximum legal
protection to tenants residing in New York's rent controlled housings.
The Braschi decision incorporates this social reality into its public pol-
icy. However, the extended family concept is not carried over to cus-
tody or visitation issues between biological and non-parent. Prevailing
legal jurisprudence is settled that a biological or adoptive parent is en-
titled to the custody of his or her child as against a person classified as
a non-parent, absent proof to the contrary.1" 6
On May 2, 1991, in Alison D. v. Virginia M.,1 2 7 the New York
Court of Appeals denied a former cohabiting lesbian non-parent, Ali-
son D., the parental status to petition for visitation with a child con-
ceived by artificial insemination and born to Virginia M. The women
established a relationship, lived together, planned the conception and
birth of a child and agreed to share jointly all rights and responsibili-
ties of child rearing. They shared all financial and emotional matters.
The relationship continued for six years until the women mutually ter-
minated their relationship and separated. Alison D. voluntarily contin-
ued her child support and visitations for approximately three years. No
legal formalization of Alison D.'s relationship with the child was
sought, and subsequently Virginia M. deliberately severed all ties be-
tween the child and Alison D.
The basic issue the court faced was whether the petitioner could
qualify as "either parent," entitled to child visitation, under an ex-
panded definition of the New York Domestic Relations Law section-
70.121 Petitioner's asserted claim for visitation was based upon the the-
ory that the term "either parent" was a status that was applicable to
'" Braschi, 543 N.E.2d at 53-54.

128 See infra cases cited in notes 127, 129-35, 137-41, 147-50.
127 Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991) (per curiam).
128 N.Y. DoM. REL. LAW § 70 (McKinney 1988 & Supp. 1993). This section of the law
provides that "either parent may apply to the Supreme Court for a writ of habeas corpus to have
such minor child brought before such court; and [the court] may award the natural guardianship,
charge and custody of such child to either parent . . . as the case may require .... " Id.
her declared "de facto" parent situation or, alternatively, that she was
a parent "by estoppel."
The Court of Appeals dismissed these claims, reaffirming New
York's legal tradition that a non-parent does not acquire a de facto
status against a natural parent absent grievous cause or necessity. Oth-
erwise, a visitation allowed to such person would necessarily impair the
parent's right to custody and control. The legislature did not intend to
give a non-parent the right to compel a fit biological or legal parent to
share child custody through visitation. Accordingly, the term "either
parent," pursuant to New York Domestic Relations Law section 70, is
interpreted as limited to biological and legal parents. Therefore, the
petitioner did not have standing to file the custody and visitation appli-
cation before the court.
On March 20, 1991, the California Court of Appeals decided the
case of Nancy S. v. Michele G.' 129 A lesbian relationship developed and
the parties agreed that Nancy S. would bear two children by artificial
insemination. In January of 1985, the parties separated. A few years
thereafter a visitation dispute arose. The biological mother filed a com-
plaint and sought to prohibit her former partner, a non-legal status
parent, from further visitation privileges with the children. The cause
of action was filed pursuant to the Uniform Parentage Act. The court
dismissed all four theories asserted by the appellant: (i) de facto par-
ent: the concept does not have parity with a natural parent; (ii) in loco
parentis: the concept does not extend to provide custody to a non-par-
ent; (iii) parenthood by equitable estoppel: presumes that a child born
to a married woman is the legitimate child of her husband, while appel-
lant's theory of "equitable parent" is rooted in a statutory recognition
of "equitable adoption" for purposes of inheritances, and expanding the
class of persons entitled to assert parental rights is a legislative prerog-
ative; and (iv) functional parent: concept is unsatisfactory because the
court found no legal relationship between Michele G. and the chil-
dren.13 All visitations and relationships between Michele G. and the
children were legally severed. The court conceded that ending the ap-
pellant's prior bonding relationship with the children would result in an
13 1
unfortunate human experience.
,2 Nancy S. v. Michele G., 279 Cal. Rptr. 212 (Ct. App. 1991).
30 Id. at 215-19.
"3 Id. at 219.
A similar result occurred in the Wisconsin Supreme Court case, In

Re Z.J.H.,"' decided June 26, 1991. The supreme court affirmed the
trial and appellate court summary judgment in favor of the adoptive
parent on the grounds that the petitioner did not have a legal relation-
ship with the child to claim custody or visitation. The pleading did not
allege that the adoptive parent was either unfit or unable to care for
the child.
In In re Z.J.H., a lesbian relationship developed between
Sporleder and Hermes, and they lived together as companions for
about eight years. During this period, Sporleder had unsuccessfully at-
tempted artificial insemination. They decided Hermes would adopt a
child. In March 1988 Z.J.H., born January 19, 1988, was placed in
their home as a result of a pre-adoptive placement by an adoption
agency. Sporleder provided the primary care for Z.J.H., while Hermes
worked outside the home. On October 25, 1988, the parties entered a
co-parenting agreement in which they agreed, among other things, that
if they separated they would determine the physical placement of
Z.J.H. through mediation, and that the non-custodial party would have
reasonable and liberal visitation rights to the child. Sometime in Octo-
ber 1988 the parties separated. Hermes then formally adopted Z.J.H.
in November 1988, and subsequently prohibited Sporleder from seeing
Z.J.H.1 aa
The Wisconsin Supreme Court held that the right of an adoptive
parent is also the right to decide whether visitation with a non-parent is
in the child's best interest. 134 The rights to child custody and visitation
are controlled by statute and case law and cannot be contracted away.
Therefore, the court should not intervene and displace clear and estab-
lished legislative public policy.1 36 A co-parenting agreement that
awards custody or visitation is void as contrary to public policy when it
is inconsistent with the legislative intent of the custody and visitation
statutes, which prefer parents over third parties.
In 1989 the Minnesota legislature enacted a statute that allows
third parties to obtain visitation rights to a child, provided that three
statutory conditions are found to exist."3 6 The Minnesota Court of Ap-
"' In re Z.J.H., 471 N.W.2d 202 (Wis. 1991).

133Id. at 204.
134 Id.
135 Id.
"' This statute provides in relevant part:
peals in Kulla v. McNulty1'" held that the legislature intended that all
three enumerated conditions had to be satisfied by prima facie evidence
by the petitioning non-parent before the court could issue an order
granting reasonable visitation.
Kulla, petitioner-appellant, had a three-year relationship with her
former lesbian lover, McNulty. McNulty had a male friend Marrone,
who impregnated her and she gave birth to a child, K.R.M. Kulla
moved into McNulty's home shortly following the child's birth and
stayed approximately two and one-half years. While residing in Mc-
Nulty's home, Kulla was the primary caretaker for K.R.M., while Mc-
Nulty was engaged in outside employment. About two years later, Mc-
Nulty and Marrone resumed their relationship and thereafter the Kulla
and McNulty relationship deteriorated. Kulla moved out of McNulty's
home in March 1988. Eventually, all visitations were denied, McNulty
and Marrone married, and Kulla commenced the present action for vis-
itation in September 1989.
The court of appeals affirmed the trial court's findings and ruling
upon the statute.13 8 A non-parent petitioner bears the burden of proof
at a preliminary evidentiary hearing of showing, by prima facie evi-
dence, that all three enumerated statutory factors have been met. 39
The trial court found a prima facie showing (1) that visitation rights
would be in the best interest of the child, and (2) that the petitioner
had prima facie established a relationship wherein emotional ties were
created between the petitioner and the child. 4 0 Over petitioner-appel-
lant's compelling objections that the custodial parent has an automatic
When child has resided with other person. If an unmarried minor has resided in a
household with a person, other than a foster parent, for two years or more and no
longer resides with the person, the person may petition the district court for an order
granting the person reasonable visitation rights to the child during the child's minority.
The court shall grant the petition if it finds that:
(I) visitation rights would be in the best interests of the child;
(2) the petitioner and child had established emotional ties creating a parent and
child relationship; and
(3) visitation rights would not interfere with the relationship between the custodial
parent and the child.
The court shall consider the reasonable preference of the child, if the court consid-
ers the child to be of sufficient age to express a preference.
MINN. STAT. ANN. § 257.022(2)(b) (West 1992).
13' Kulla v. McNulty, 472 N.W.2d 175 (Minn. Ct. App. 1991).
138 Id. at 184.
139 Id.
110 Id. at 176.
veto pertaining to the third statutory factor, the court of appeals rea-
soned as follows: the appellant has no common law derivative right to
visitation and the legislature has set out what must be shown before she
may be granted visitation. 141 Although the statute imposes a heavy bur-
den of persuasion upon the petitioner, it is no more difficult than a
situation in which a third party seeks to intervene in the relationship of
a custodial natural parent and child, where the third party movant
bears the burden of persuasion.
On January 30, 1992, in A.C. v. C.B.,142 the New Mexico Court of
Appeals ruled that the parties' relationship had sufficient material fac-
tual issue to require an evidential hearing. Crouch and Bellistri, were
two women who lived together for seven years and raised a family. Bel-
listri agreed to artificial insemination and S.J.B. was born September 9,
1980.143 The parties entered into an oral agreement to raise the child as
co-parents. Thereafter, the two women shared parental responsibilities,
contributing equally to the emotional, educational, financial planning
and physical well-being of their child. 4 4 In July 1987, the women
separated.
Crouch filed a petition in October 1988 seeking joint legal custody
and time-sharing. The Court dismissed the petition with prejudice.
Crouch motioned to reopen the judgment alleging the original co-
parenting agreement was honored until March 1988, when Bellistri
145
breached it.
On appeal from an order granting summary judgment, the appel-
late division remanded to the trial court with instructions to determine
the following: (1) the existence of the agreement; (2) whether there
was improper conduct on the part of Bellistri; (3) a best interest hear-
ing; and (4) although sexual orientation is relevant, this factor alone is
not sufficient to deny shared custody or visitation. The court must make
a finding on specific evidence as to how the parents' sexual activities, if
any, affect the child. 1 46 This decision represents an important break-
through: upon termination of a non-traditional familial relationship, a
'I' Id. at 182.

142 A.C. v. C.B., 829 P.2d 660 (N.M. Ct. App. 1992).
143 Id. at 661.
144 Id.
145 Id.
146 Id. at 663-66.
non-parent petition for joint custody and visitation is subject to factual

issues.
A superficial analysis of the first four visitation cases would readily
focus upon the unjust hardship sustained by a loving, caring and per.-
haps exemplar non-parent whose relationship with the child is severed
at the discretion of the custodial natural or adoptive parent. However,
the evolution of American legal jurisprudence that shapes and forms
public policy is primarily derived through legislative enactments. Any
contrary ruling by the Courts in either Alison D.,147 (New York),
Nancy S., 1 48 (California), In re Z.J.H.,"4 9 (Wisconsin) or Kulla' 50
(Minnesota) would have strained the clear statutory intent and the
courts would have promoted a non-existent public policy in derogation
of their judicial function.
The exception, however, is if the evidence affirmatively shows that
the parent is unfit or has forfeited parental rights, is unable to care
properly for the child or if there are other extraordinary circumstances
requiring that the parent be denied custody. Otherwise, a child cannot
be transferred from a biological or adoptive parent to a non-parent,
except upon compelling evidence and only for the gravest reasons. The
right of visitation is derived from the right of custody and is controlled
by the same legal principles. However, A.C. v. C.B.1 51 (New Mexico),
recognized the parties' co-parenting agreement as having sufficient
merit to raise a genuine issue as to a material fact, thereby entitling
the petitioner to an evidential hearing. The appellate decision is a sig-
nificant breakthrough. Trial courts may consider the decision persua-
sive as they chart the course of emerging law.
The Braschi 52 decision's extended family concept provides a com-
prehensive jurisdictional interpretation of police powers legislation in
order to foster and implement anti-domestic violence legislation. The
case in point is State v. Hadinger.153 On March 21, 1991, the Ohio
Appellate Court construed an amended domestic violence statute, 54 to
...Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991) (per curiam).

Nancy S. v. Michele G., 279 Cal. Rptr. 212 (Ct. App. 1991).
in re Z.J.H., 471 N.W.2d 202 (Wis. 1991).
I4
150 Kulla v. McNulty, 472 N.W.2d 175 (Minn. Ct. App. 1991).
A.C. v. C.B., 829 P.2d 660 (N.M. Ct. App. 1992).
52 Braschi v. Stahl Assoc. Co., 543 N.E.2d 49 (N.Y. 1989).
"' State v. Hadinger, 573 N.E.2d 1191 (Ohio Ct. App. 1991).
The Ohio statute provides in pertinent part:
incorporate protective remedies for same-sex non-related cohabitants,

who were living as spouses.
Ellensara Evans filed a domestic violence charge against Carol

Hadinger, alleging that Hadinger "did knowing[ly] cause physical
harm to a household member, to wit, Ellensara E., person living as a
spouse." 1 5 The trial court, sua sponte, dismissed the charges, ruling as
a matter of law that because the two women cannot be married, there
cannot be a domestic violence charge based on that particular language
(i.e., that the Defendant was "living as a spouse with
Complainant").' 56
On appeal, the Ohio Appellate Court found the language of do-
mestic violence law expressed the legislative intent to protect persons
who are same-sex cohabitants. 1 A contrary interpretation would evis-
cerate the efforts of the legislature to safeguard, regardless of gender,
the rights of victims of domestic violence. The appellate court rein-
forced the legitimate state interest in employing its police power to pro-
tect the health, welfare and safety of its citizens.1 58
VIII. CONTEMPORARY ISSUES IN A CHANGING SOCIETY
Initially, domestic partnership registration in San Francisco, Cali-

fornia evoked nationwide media coverage, where effeminate and eu-
phoric feelings were openly displayed by gays, lesbians and their OV-
(A) No person shall knowingly cause or attempt to cause physical harm to a fam-
ily or household member.
(E) As used in this section and section 2919.26 of the Revised Code:
(I) 'Family or household member' means any of the following, who is resid-
ing or has resided with the offender:
(a) A spouse, a person living as a spouse, or a former spouse of the
offender;
(2) 'Person living as a spouse' means a person who is living or has lived with
the offender in a common law marital relationship, who otherwise is cohabiting
with the offender, or who otherwise has cohabited with the offender within one
year prior to the date of the alleged commission of the act in question.
OHIo REV. CODE ANN. § 2919.25 (Baldwin 1991).
573 N.E.2d at 1191.
Ild. at 1192.
157Id. at 1193.
'5 Id.
ers. 159 While the homosexual community sought to validate their

"lifestyle," 160 heterosexuals perceived this behavior as abhorrent, an
aberration from the norm and an affront to traditional family, religious
and societal values. The gay and lesbian couples view domestic partner-
ships as a legal mechanism that is designed to circumvent the legal
prohibition against homosexual marriages.16 1 It is a method by which
non-traditional relationships obtain some basic benefits that are enjoyed
by spouses.1 2 As cohabiting homosexuals have significantly increased
in numbers, they have established families with children, and they are
confronting the courts with a value system unlike those derived from
163
the traditional family.
The homosexual community held the perception that their lifestyle

and experience could not be understood in the heterosexual frame-
work. 6 4 The attitude was not to disclose that gays and lesbians were
likewise victims of domestic violence.16 5 If there were expectations of
disclosure, there were no resources available to offer support to the bat-
tered gay or lesbian, 166 and furthermore, it would represent a "coming
out," which was not looked upon as a viable option.1 67 Lately, however,
victims of homosexual domestic violence are utilizing the legal system
and openly talking about their experiences.1 68
.. Katherine Bishop, Not Quite a Wedding, but Quite a Day for Couples by the Bay, N.Y.
TIMES, Feb. 15, 1991, at A16.
160 Id.
'6 J. WILKINSON. SEATTLE COMMISSION FOR LESBIANS AND GAYS. QUESTIONS AND ANSWERS
ABOUT DOMESTIC PARTNERSHIPS (1988). See also Ronald I. Friedman, Family Law in America:
Are the Municipalities Seizing the Initiative? HOME RULE AND CIVIL Soc'Y (Feb. 1991).
16 ROBERTA ACHTENBERG, NATIONAL CENTER FOR LESBIAN RIGHTS, PRESERVING AND PRO-
TECTING THE FAMILIES OF LESBIANS AND GAY MEN (1990). See supra notes 41-42.
163 See supra notes 16, 35, 123, 127, 129-35, 137-42.
160 CONFRONTING LESBIAN BATTERING (Minnesota Coalition for Battered Women, P. Elliott,
ed., 1990).
166 V. Kanuha, Compounding the Triple Jeopardy: Battering in Lesbian of Color Relation-
ships. The Haworth Press, Inc. (1990).

16 Claire M. Renzetti, Violence in Lesbian Relationships: A Preliminary Report of the
Findings, 3 J. INTERPERS. VIOLENCE 381 (1988). Of the 96 battered lesbians surveyed, only
12.9% sought help from battered women's shelters, but only 3.1% found them very helpful, while
8.3% claimed they were no help at all. Id.
167 Seattle Counseling Service, organized in 1980, has developed a model program utilizing a
Service Plan. Training and education emphasizes bringing the issue of lesbian/gay domestic vio-
lence "out of the closet."
166 The 13th National Lesbian and Gay Health Conference, held in New Orleans, LA., on
July 24-28, 1991, represented the first attempt by the lesbian and gay community to publicly
address issues of domestic violence.
The common assumption shared by many law enforcement agen-

cies was that homosexuals cared only about seeking immoral sexual
activity. Unfounded suspicions about homosexual behavior do not facil-
itate a good relationship between heterosexuals, law enforcement au-
thorities and members of the homosexual community."6 9 The interac-
tion of the police and gay community relations groups, along with the
development of model training programs will help law enforcement offi-
cials become more responsive to anti-gay and lesbian violence. 170
Legal advocates for the homosexual community perceive that there
are definite advantages to the institution of (homosexual) marriage and
acknowledge the limited benefits under domestic partnership. 71 There
are others who advance the position that not all in the homosexual
community agree that marriage is the "ideal" status that should be
sought by lesbians and gays. 17 1 Some hold an interesting perception
that homosexual marriages would become state-regulated and legiti-
mize only the lesbian and gay sex performed between married homo-
sexuals. 7 3 However, the threshold question is whether a state can exert
its sovereign power to license homosexual marriages.
The Equal Protection Clause of the Fourteenth Amendment is a
limitation and restriction of power exercised by state governments. 74
In an equal protection analysis, the presumption is that the objectives
of the statute articulated by the legislature are the actual purposes of
"0 Developments in the Law-Sexual Orientation and the Law, 102 HARV. L. REV. 1508
(1989).
170 Id.
'71 Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, 6 OUTLOOK 9,
10-13 (1989).
"' Paula L. Ettelbrick, Since When is Marriage a Path to Liberation? 6 OUTLOOK 14-17
(1989).
"I Ruthann Robson & S.E. Valentine, Lov(h)ers: Lesbians as Intimate Partners and Lesbian
Legal Theory, 63 TEMP. LQ.. 511, 538 (1990). This Article contributes to the emerging concept
of lesbian legal theory and the legal and judicial institution's recognition of lesbianism from which
legal principles are modified. In this context, the Article quotes lesbian attorney Paula Ettelbrick,
who rejects marriage as an appropriate ambition for lesbians:
[M]arriage will not liberate us as lesbians and gay men. In fact, it will constrain
us, make us invisible, force our assimilation into the mainstream, and undermine the
goals of gay liberation . . ..
[Glay marriage instead of liberating gay sex and sexuality, would further outlaw
all gay and lesbian sex which is not performed in a marital context . . . . The only
legitimate gay sex would be that which is cloaked in and regulated by marriage.
Id. (quoting Paula L. Ettelbrick, Since When is Marriage a Path to Liberation? 6 OUTLOOK 9,
14, 16 (1989)).
"' Shelly v. Kraemer, 334 U.S. I (1947).
JOURNAL OF FAMILY LAW [Vol. 3 1
the statute.' The standard of review under the Fourteenth Amend-

ment Equal Protection analysis is governed by federal constitutional
law, and a state court's application of that standard is fully reviewable
in the United States Supreme Court on a writ of certiorari.17
In considering whether a state statute violates the Equal Protec-
tion Clause of the Fourteenth Amendment, the Court will apply differ-
ent levels of scrutiny to different types of classifications. 177 At the first
level of scrutiny, the legislation must bear some rational relationship to
a conceivable legitimate state interest or purpose. ' 8 The Court will as-
certain the basis of the classification, the individual interests affected
by the classification and the governmental interest asserted in support
of the classification.' 7 9 If the varied treatment of different groups or
persons is unrelated to achieving a legitimate state interest or purpose,
the Court will conclude that the legislature's actions were irrational.' 80
A second level of scrutiny is applied when the state impermissibly
interferes with the exercise of a fundamental right or legislates to the
disadvantage of a suspect class. 8 ' A state law affecting a suspect class
is subjected to strict scrutiny and the law will be sustained only if it is
"suitably tailored to serve a compelling state interest."' 82
The third level of scrutiny is on a level between rational relation-

ship and strict scrutiny. A quasi-suspect classification is subject to
heightened scrutiny, wherein the challenged classification must be
"substantially related to a legitimate interest."' 8 3 Otherwise, discrimi-
natory government action need only be justified by a rational basis
standard. 84 The United States Supreme Court has recognized gen-
der 85 and illegitimacy 8" as quasi-suspect.
'" Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461-63, reh'g denied, 450 U.S.
1027 (1981).
176 Id.
177 Clark v. Jeter, 486 U.S. 456, 461 (1988).

178 Trimble v. Gordon, 430 U.S. 762, 766 (1977); New Orleans v. Dukes, 427 U.S. 297, 303
(1976).
"7 Dunn v. Blumstein, 405 U.S. 330, 335 (1972).
180 Vance v. Bradley, 440 U.S. 93, 97 (1979).
181 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312 (1976).
182 City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985).
'8s Mills v. Habluetzel, 456 U.S. 91, 99 (1982).
184 427 U.S. at 307.
185 Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-24 (1982).
18" Lalli v. Lalli, 439 U.S. 259, 265 (1978).
The Court has traditionally used several criteria to identify suspect

classes "saddled with such disabilities, or subjected to such a history of
purposeful unequal treatment or relegated to such a position of political
powerlessness as to command extraordinary protection from the
majoritarian political process. ' 187 Presently, the Supreme Court has
recognized only three suspect classifications: race,188 alienage 89 and
national origin.19
The Ninth Circuit considered a case in which the military had
refused to re-enlist an admitted homosexual. The majority held the
Army was equitably estopped because they had years of prior knowl-
edge and overlooked his disclosed homosexuality.191 Concurring opin-
ions equated homosexuality with immutable characteristics such as sex,
alienage and race, which have been subjected to purposeful discrimina-
tion in the past and entitled to suspect classification.1 92 The majority of
Federal Circuits have declined to recognize homosexuality as either a
suspect or a quasi-suspect classification. Homosexuals, unlike blacks or
women, do not exhibit immutable characteristics. Homosexuality is pri-
marily behavioral in nature.1 93 Homosexuals do not exhibit obvious, im-
mutable or distinguishing characteristics that define them as a discrete
group. 19 ' The distinction is that the conduct or behavior of the mem-
bers of such recognized suspect or quasi-suspect class has no relevance
to the identification of those immutable characteristics pertaining to
those groups.95
The Bowers v. Hardwick 9 6 decision turned upon the substantive
due process issue: whether the United States Constitution conferred a
fundamental right upon homosexuals to engage in consensual sodomy,
187 San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).

Loving v. Virginia, 388 U.S. 1,11 (1967).
188 Graham v. Richardson, 403 U.S. 365, 372 (1971).
'" Korematsu v. United States, 323 U.S. 214, 216 (1944).
'o' Watkins v. United States Army, 875 F.2d 699 (9th Cir. 1989) (en banc). Judge Norris,
in a concurring opinion joined by Judge Canby, would have subjected the Army's regulations to
strict scrutiny. Id. at 728 (Norris, J., concurring).
"9 Id. at 711-31.
"' See High Tech Gays v. Defense Indus. Sec. Clearance Offc., 895 F.2d 563 (9th Cir.),
reh'g denied, 909 F.2d 375 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989);
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97
(D.C. Cir. 1987).
'" Woodward, 871 F.2d at 1076 (quoting Lyng v. Castillo, 477 U.S. 635, 638 (1986); Fron-
tiero v. Richardson, 411 U.S. 677, 686 (1973)).
", See cases cited supra r ote 193.
19 Bowers v. Hardwick. 478 U.S. 186 (1986).
contrary to the laws of many states. The U.S. Supreme Court's plural-
ity decision held that no constitutional or fundamental right of privacy
exists that extends to homosexuals the right to engage in acts of con-
sensual sodomy. 97 The homosexual conduct has no connection to fam-
ily, marriage or procreation. The Court found that no expressed or im-
plied substantive due process right of privacy exists, because sodomy is
neither implicit in the concept of ordered liberty nor deeply rooted in
this nation's history and tradition.
In a post-Bowers case, the District of Columbia Circuit in
Padula98 commented that the Supreme Court required a finding re-
garding whether a rational basis for the Georgia anti-sodomy statute
existed. The presumption that the Georgia electorate believed that sod-
omy is immoral provided an adequate rationale for criminalizing such
conduct. Subsequent cases held that the Padula decision foreclosed the
possibility that practicing homosexuals can gain a suspect class sta-
tus.' 99 Therefore, legitimizing lesbian and gay relationships by granting
them marital status is constitutionally unsustainable. Homosexuals are
neither recognized as a suspect class nor as a quasi-suspect
classification.
A. A Non-Parent in a Traditional or Non-Traditional Familial

Relationship
An interesting legal issue has emerged involving child custody and

visitation rights between parents and non-parents. Non-parents are
common in both traditional and non-traditional familial relationships.
The problem arises when one person has neither a biological nor adop-
tive tie to the child. Assume that the parent, non-parent partner and
the child have developed a loving, caring, stable non-marital heterosex-
ual familial relationship. This situation is traditionally acceptable in
American culture, and also qualifies for acceptance under the emerging
domestic partnership status.2"' Further assume that the non-parent
partner and child developed a strong bonding kinship. The situation of
non-related, same-sex cohabitants rearing children in their household
has become characteristic of a non-traditional family. Generally, one
Id.
I,' at 190-91.
18 Padula v. Webster, 822 F.2d 97, 103-04 (D.C. Cir. 1987).
Ben-Shalom v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989); Woodward v. United States,
871 F.2d 1068, 1076 (Fed. Cir. 1989).
'0' See supra notes 42-44.
cohabitant will assume the motherhood role, either through impregna-

tion by artificial insemination or through legal adoption. The compan-
ion assumes the role as the primary caretaker or the homemaker, or as
the secondary caretaker and the breadwinner. The child is provided
with a set of loving, caring "parents" and a stable home. Even with its
peculiar attributes, the arrangement is, nonetheless, a functional
family.
The fundamental distinction is that a non-traditional family does
not have legitimate status. Children raised in these households legally
have only one parent. Parental rights, custody and visitation disputes
have surfaced in several states. These issues have confronted the courts
after the parent and lover terminate their relationship. The courts have
denied the non-parent applications for child custody and visitation,
finding neither biological nor legal relationship pursuant to statutory
201
requirements.
The following is a hypothetical case that could well become a fact
pattern repeated by domestic violence victims applying for a restraining
order:
HYPOTHETICAL: Select either a traditional or non-traditional family.
The family composition is a child, his or her natural or legal adoptive
parent and the parent's companion and homemaker. While all the par-
ties are residing in the house, the natural parent commits acts of do-
mestic violence2 1 2 against the companion. The non-paren victim 0 3 files
a domestic violence complaint 204 and seeks the following restraints: 20 5
(1) prohibit defendant-abuser from committing future acts of domestic
violence; (2) prohibit defendant from having contact with the victim;
(3) bar defendant from the home; (4) prohibit defendant from harass-
ing the victim and other household members; (5) grant plaintiff the
exclusive possession of the home; (6) grant plaintiff (non-parent) child
custody; and (7) law enforcement officers shall escort the defendant for
removal of his or her personal belongings.
Procedurally, a Judge of the Family Part of the Chancery Division
of the Superior Court or assigned Municipal Court Judge initially will
hear ex parte the victim's testimony and rule upon the legal sufficiency
201 See supra notes 127, 129-35, 137-41, 147-50 and accompanying text.
201 N.J. STAT. ANN. § 2C:25-19a (West Supp. 1992).
203 N.J. STAT. ANN. § 2C:25-19d (West Supp. 1992).
20 N.J. STAT. ANN. §§ 2C:25-28a, -28f (West Supp. 1992).
20 N.J. STAT. ANN. §§ 2C:25-28f to -28m (West Supp. 1992).
or jurisdiction10 6 and that a domestic violence act has' occurred.20 A

temporary restraining order is mandated.2 0 New Jersey has a strong
policy disfavoring in-house restraints.2 09 Under the circumstances, the
victim has the presumptive statutory right to have the abuser removed
immediately from the resident premises.
New Jersey legislative policies have firmly established that a par-
ent/child relationship status applies only to either a biological-natural
or legal-adoptive parent.21 0 The best interest of the child is the primary
concern to the court. Furthermore, in a case involving the custody of a
minor child, the paramount consideration is the safety, happiness, phys-
ical, mental and moral welfare of the child. "Neither parent has a su-
perior right to custody." 11 Child custody is based on everything that is
relevant to the child's best interests as they are today. 212 The criteria
for visitation is the desirability for the child to have contact with both
parents. The parents' interests are considered, but the best interests of
the child are paramount. 3
A third person (non-parent) complaint petition challenging the
parent for child custody represents the strongest interference with the
parents' fundamental right to parenthood." 4 The presumption strongly
favors the right of the natural parent to custody of his or her own
200 N.J. STAT. ANN. §§ 2C:25-19c, -28 (West Supp. 1992).

207 N.J. STAT. ANN. § 2C:25-19a (West Supp. 1992).
208 N.J. STAT. ANN. 3§ 2C:25-28f to -28j (West Supp. 1992).
1 1 Robert N. Wilentz, Chief Justice, New Jersey Supreme Court, Directive #2-92, Proce-
dures for Issuance of In-House Restraining Orders.
To begin with, in-house restraints may only be issued at the request of the plaintiff.
[T]he judge must explain the inherent difficulty in enforcing in-house restraints, and
must be certain that the victim understands that such restraints offer far less protection
than a no-contact order that bars the defendant from the victim's place of residence
and/or business, as appropriate. [[In-house restraints should only be issued at an emer-
gent hearing in the rare circumstances where both parties are present and a full hearing
is held, and otherwise should only be available at the final hearing stage.
Id.
210 N.J. STAT. ANN. § 9:2-13f (West 1993) (supplying the definition of "parent" applicable
to
the care, custody and support of children); § 9:3-38f (supplying the definition of "parent" applica-
ble to adoption proceedings); § 9:17-39 (clarifying the definition of the parent and child relation-
ship applicable to the New Jersey Parentage Act); § 3B:1-2 (defining "parent" as applicable to
estate administration); § 34:1 IB-3a (defining "child" and § 34:1 IB-3h defining "parent" as appli-
cable to the Family Leave Act).
2,2 Fantony v. Fantony, 122 A.2d 593, 598 (N.J. 1956).
202 In re Baby M., 537 A.2d 1227, 1258 (N.J. 1988).
202 Id. at 1263.

024 See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Stanley v. Illinois, 405 U.S.
645, 651-52 (1972) (and cases cited); In re Dotson, 367 A.2d 1160, 1165 (N.J. 1976) (Pashman,
child.21 5 This right recognizes the natural bond of blood and affection
between parent and child. The right is "described as akin to a trust
reposed in the parent by the State as parens patriae,for the welfare of
the infant."""6
B. The New Jersey Situation
In a consistent line of cases, the United States Supreme Court has

continued to recognize constitutional protections accorded to parental
rights. 1 ' Justice Scalia's plurality opinion in Michael H. v. Gerald D.
acknowledged that these cases turn on the historic respect for the sanc-
tity accorded the traditional family.2" 8 However, New Jersey has long
recognized that parental rights are not absolute. They are subject to
destructive factors such as parental unfitness, parent lack of interest
and abandonment. 1 Ultimately, a determination is based upon the
child's best interest. 2 0 It is clear that "[p]arental rights do not spring
full-blown from the biological connection between parent and child.
They require relationships more enduring."221
In essence, the non-parent custody petition against a natural par-
ent resembles a parental termination action.22 2 Notwithstanding that
visitation may be preserved, the custody award destroys the normal in-
cidents of parenthood and eliminates nearly all of the everyday care
23
and nurturing that are part of the bond between a parent and child.
Therefore, the non-parent petition would first have to raise and support
a claim that the biological or legal parent is an unfit parent or that
there are extraordinary circumstances affecting the child's welfare. 22"
J.,concurring); State v. Perricone, 181 A.2d 751 (N.J.), cert. denied, 371 U.S. 890 (1962). See
also In re Adoption of Children, 233 A.2d 188 (N.J. Super. Ct. App. Div. 1967).
"' In re D.T., 491 A.2d 7, 9 (N.J. Super. Ct. App. Div. 1985).
216 In re Mrs. M., 181 A.2d 14, 16 (N.J. Super. Ct. App. Div. 1962).
21 See. e.g., Lehr v. Robertson, 463 U.S. 248 (1983); Caban v. Mohammed, 441 U.S. 380
(1979); Quilloin v. Walcott, 434 U.S. 246 (1978); Stanley v. Illinois, 405 U.S. 645 (1972).
218 See also Lehr, 463 U.S. at 261; Caban, 441 U.S. at 389; Quilloin, 434 U.S. at 254-55;
Stanley, 405 U.S. at 651.

119 In re Mrs. M., 181 A.2d at 17-18.
220 Id.
221 In re Adoption of a Child of Indian Heritage, 543 A.2d 925, 932 (N.J. 1988) (Justice
Handler, writing the unanimous opinion citing Lehr v. Robinson, 463 U.S. at 260 (quoting Caban
v. Mohammed, 441 U.S. at 397 (Stewart, J., dissenting))). (Emphasis added in Lehr deleted).
222 N.J. STAT. ANN. §§ 30:4C-I to :4C-65 (West 1981 & Supp. 1992); N.J. STAT. ANN. §§
9:3-37 to :3-56 (West 1993).
223 Zack v. Fiebert, 563 A.2d 58, 63 (N.J. Super. Ct. 1989).
224 In re D.T., 491 A.2d 7, 10 (N.J. Super. Ct. App. Div. 1985).
The New Jersey Legislature in 1915 enacted legislation that pro-

vided child protection to abused, abandoned, cruelly treated and ne-
glected children held in a custodial relationship.2 5 The legislative in-
tent was to protect children in the broadest range of their custodial
environment. In this regard, the stepparents and custodian categories
were legislated into parental recognition. In 1987 several amendments
supplemented the statute and provided more sensitivity to child
abuse.2 2
The 1987 amendments specifically expanded the jurisdiction to in-
clude adoptive or foster parents and teachers, staff, employees and vol-
unteers of an institution that is responsible for the child's welfare. The
statute strengthens the statutory provision of "the person having the
care, custody and control of any child" to expressly include "a person
who legally or voluntarily assumes the care, custody, maintenance or
support of the child."22' 7
Clearly, the legislative scheme is to protect children in households,
schools and institutions. The Superior Court is empowered to "enter an
order directing the temporary removal of a child from the place where
he [or she] is residing prior" to holding a preliminary hearing if
(1) the parent or other person legally responsible for the child's care is absent
or, though present, was asked and refused to consent to the temporary re-
moval of the child and was informed of any intent to apply for any order
under this section; and (2) the child appears so to suffer from the abuse or
neglect of his [or her] parent or guardian that his [or her] removal is neces-
sary to avoid imminent danger to the child's life or health; and (3) there is
not enough time to hold a preliminary hearing. 28
A police officer or designated -Division of Youth and Family Ser-

vice (DYFS) employee is authorized to make an immediate emergency
removal of the child from the place where he or she is residing, without
court order or consent of the parent or guardian, if such condition
presents an imminent danger to the child's life or health.22 9 Emergency
removal of any other children residing in the home is approved if their
immediate removal is necessary to avoid imminent danger to their life
or health. 3
226 N.J. STAT. ANN. §§ 9:6-1 to -8 (West 1993).

.S See N.J. STAT. ANN. §§ 9:6-1, -1g, -1h, -8.21a, -8.21c, -8.21g, h, -8.9d, -8.9f (West 1993).
.27N.J. STAT. ANN. § 9:6-2 (West 1993).
228 N.J. STAT. ANN. § 9:6-8.28 (West 1993).
" N.J. STAT. ANN. § 9:6-8.29 (West 1993).
220 N.J. STAT. ANN. § 9:6-8.33c (West 1993).

The statute is not without due process protections. Upon emer-

gency removal, the DYFS must,2 31 commence the proceeding by filing
a complaint," 2 issue of summons,"' and service thereof,2 3 give notice
and right of accused parent to have counsel,2"' hold a preliminary hear-
ing'" and a hearing to determine whether a child temporarily removed
should be returned. 237 The statute also provides that a preponderance
of the evidence is the standard of proof, 23 8 gives a procedure for dismis-
sal and amending the allegations to conform to the proofs and other-
wise sustaining the complaint. 239 Finally, the statute sets forth guide-
lines for a hearing disposition or adjudication, 2 0 and ultimately child
placement. 4 1
To summarize the child placement statute: the court may place
the child in the custody of a relative or other suitable person; the
placement is temporary; initially for a period not exceeding eighteen
months. Upon a hearing, the court may make successive extensions for
additional one year periods. No placements are extended beyond the
child's eighteenth birthday. A parent receiving welfare assistance is
then subject to having the grant reduced in proportion to the amount
attributable to the child.
242 impos-
The court is empowered to enter an order of protection,
ing upon the respondent reasonable restraints and visitations. The order
can also prohibit offensive conduct, maintain the home and prohibit fu-
ture acts that tend to make the home an improper place for the child.
Furthermore, the court is authorized to place the respondent under the
supervision of the probation department. 43
The hypothesis acquired from Chapter 6 of Title 9244 is that an
endangered child can be temporarily removed from the abusive parent
231 N.J. STAT. ANN. § 9:6-8.34a (West 1993).

232 N.J. STAT. ANN. § 9:6-8.33 (West 1993).
231 N.J. STAT. ANN. § 9:6-8.37 (West 1993).
231 N.J. STAT. ANN. § 9:6-8.38 (West 1993).

135 N.J. STAT. ANN. § 9:6-8.43 (West 1993).
136 N.J. STAT. ANN. § 9:6-8.31 (West 1993).
113 N.J. STAT. ANN. § 9:6-8.32 (West 1993).
23 N.J. STAT. ANN. § 9:6-8.46 (West 1993).
239 N.J. STAT. ANN. § 9:6-8.50 (West 1993).
240 N.J. STAT. ANN. § 9:6-8.51 (West 1993).
"I N.J. STAT. ANN. § 9:6-8.54 (West 1993).
242 N.J. STAT. ANN. § 9:6-8.55 (West 1993).
243 N.J. STAT. ANN. § 9:6-8.56 (West 1993).
244 N.J. STAT. ANN. § 9:6-1 to :6-8.73 (West 1993).
and temporarily placed in the custody of other suitable persons. Al-

though foster placement is common and relatives are preferred, the
plain language of the statute provides for "other suitable person. 24 5 A
primary rule of statutory construction is to determine the intent of the
legislature"" and the clearest indication of that intent is the statutory
language.4 7 The statutory, reference to what constitutes abuse, aban-
donment, cruelty and child neglect 24 8 and the elements of child abuse
are self-evident.2 9 Effect should be given to every word and phrase and
it should not be assumed that the legislature used meaningless lan-
guage. 50 It is not the forced meaning of isolated words but the internal
sense of the law and the spirit of the correlated 25symbols of expression
1
that allow the intention to emerge from the act.
The expressed language of child placement provisions2 2 is to re-

move the child from an endangered home environment and place the
child in one of three situations. Logically, a relative offers kinship fa-
miliarity, while another suitable person may offer personal warmth be-
yond that of a DYFS recommended foster home. All three situations
are legislatively approved. The goal is to obtain a family structure that
provides appropriate care. The statute's plain language, absent any spe-
cific indication of legislative intent to the contrary,2 53 clearly commands
that an involuntary and temporary out-of-home placement is the means
by which to achieve the goals.
On August 19, 1990, a year prior to the Prevention of Domestic
Violence Act of 1991,254 the legislature substantially revised the par-
ent's right to equal custody statute. 255 The amended legislative lan-
guage declares New Jersey public policy regarding child custody: as-
24' N.J. STAT. ANN. § 9:6-8.54a (West 1993).

248 Medical Soc'y v. Dep't of Law & Pub. Safety, 572 A.2d 1348, 1353 (N.J. 1990); AMN,
Inc., v. South Brunswick Township Rent Leveling Bd., 461 A.2d 1138, 1141 (N.J. 1983).
247 Perez v. Pantasote, 469 A.2d 22, 27 (N.J. 1984).
248 N.J. STAT. ANN. § 9:6-1 (West 1993).
249 N.J. STAT. ANN. § 9:6-8.9 (West 1993).
220 See, e.g., Paper Mill Playhouse v. Millburn Township, 472 A.2d 517, 526 (N.J. 1984);
Peper v. Princeton Univ. Bd. of Trustees, 389 A.2d 465, 472 (N.J. 1978); Gabin v. Skyline Ca-
bana Club, 258 A.2d 6, 9 (N.J. 1969).
22. Alexander v. New Jersey Power & Light Co., 122 A.2d 339, 342 (N.J. 1956).
22 N.J. STAT. ANN. § 9:6-8.54 (West 1993).
223 Town of Morristown v. Woman's Club, 592 A.2d 216, 219 (N.J. 1991); Kimmelman v.
Henkels & McCoy, Inc., 527 A.2d 1368, 1371 (N.J. 1987); Mortimer v. Board of Review, 493
A.2d 1, 3-4 (N.J. 1985).
224 N.J. STAT. ANN. § 2C:25-17 (West Supp. 1992).
22I N.J. STAT. ANN. § 9:2-4 (West 1993).
suring minor children frequent and continuing contact with both

parents following the parents' separation or marriage dissolution. It is
in the public interest to encourage parents to share the rights and re-
sponsibilities of child rearing in order to effect this policy.216
The statute has prima facie equalized the positions and rights of
both parents. The court is authorized and shall enter an order which
may include joint custody, " " sole custody,2 58 or any other custody ar-
rangement that is determined to be in the best interest of the child. 5 9
It is significant to note that the several factors that shall be considered
are: the parents' ability to agree, communicate and cooperate in mat-
ters relating to the child; the history of domestic violence, if any; the
safety of the child and the safety of either parent from physical abuse
by the other parent. 260 Furthermore, parent-child custodial bonding is
highly favored because it serves the legislative purposes and goals of
the state public policy. However, if a court finds that the parents' con-
duct has a substantial adverse effect on the child, and therefore adjudi-
cates the parent as unfit, then accrued custody rights are subject to
divestment.
Subparagraphs d, e and f delineate specific determinants a court
shall consider in awarding child custody based upon the parents' cus-
tody arrangement either as established or proposed and the court shall
specifically place on the record the factors that justify any custody ar-
rangement not agreed to by both parents.2 " For the purposes of this
262
statute, the word "parent" means a natural or adoptive parent.
The court is authorized to appoint a guardian ad litem or an attor-
ney, or both, to represent the minor child's interest.2 "3 The statute rec-
ognizes the child's cognizable interest to the exclusion of either or both
parents-the child is the real interested party.
250 Id.
2.7 N.J. STAT. ANN. § 9:2-4a (West 1993).
I" N.J. STAT. ANN. § 9:2-4b (West 1993).
2.. N.J. STAT. ANN. § 9:2-4c (West 1993).
260 Id.
261 N.J. STAT. ANN. § 9:2-4d-f (West 1993).
262 N.J. STAT. ANN. § 9:2-4c (West 1993).
263 The statute provides that:
The court, for good cause and upon its own motion, may appoint a guardian ad
litem or an attorney or both to represent the minor child's interests. The court shall
have the authority to award a counsel fee to the guardian ad litem and the attorney and
to assess that cost between the parties to the litigation.
N.J. STAT. ANN. § 9:2-4c (West 1993).
A case in point involved natural parents delivering a child and

documents purporting to relinquish their parental rights to an unmar-
ried heterosexual couple. 64 The couple married and raised the child for
nine years before they divorced. Neither parent had adopted the child,
but the Chancery Court granted child support, holding that the child
was the real party in interest. 6 5 The child's position had changed to his
detriment by acts of the husband, against whom the estoppel principle
was successfully asserted. 6
For a third party seeking child custody from the natural or adop-
tive parents, the standard of proof is parental unfitness. 6 7 However, an
exception to this rule involves the concept of psychological parenting. 8
Children can form strong psychological bonds with a foster parent.
Foster parents applying for temporary custody are entitled to a plenary
hearing. 6 9 To obtain custody, the foster parent must prove by a pre-
ponderance of the evidence that removing the child will have a serious
potential for psychological harm to the child. 0°
In making this determination, the court considers the following
factors: the child's age at time of placement; length of time in foster
care; and interaction maintained with biological parents. 71 These fac-
tors are weighed against the continued loving, caring and nurturing
provided by the foster parent. If there is serious potential for psycho-
logical harm, the court can invoke its parens patriae authority, 7 2 and
in the best interest of the child,27 can grant temporary custody to the
foster parent.2 " Visitation by the biological parent is encouraged, 7 5
264 A.S. v. B.S., 354 A.2d 100 (N.J. Super. Ct. 1976), a ff'd, 374 A.2d 1259 (N.J. Super. Ct.
App. Div. 1977).
265 354 A.2d at 102.
:" Id. at 103.
267 In re D.T., 491 A.2d 7, 8 (N.J. Super. Ct. App. Div. 1985).
26 See. e.g., Sorentino v. Family & Children's Soc'y of Elizabeth, 378 A.2d 18 (N.J. 1977)
[Sorentino II]; Sees v. Baber, 377 A.2d 628 (N.J. 1977); Sorentino v. Family & Children's Soc'y
of Elizabeth, 367 A.2d 1168 (N.J. 1976) [Sorentino 1]; Hoy v. Willis, 398 A.2d 109 (N.J. Super
Ct. App. Div. 1978).
269 See cases cited supra note 268.
270 Sorentino 1I,378 A.2d at 23-24 (N.J. 1977).
271 Sees, 377 A.2d at 639; Sorentino I, 367 A.2d at 1168.
272 Sorentino 1, 367 A.2d at 1171; Hoy, 398 A.2d at 112.
273 Hoy, 398 A.2d at 112 (citing Fantony v. Fantony, 122 A.2d 593, 598 (N.J. 1956)). Cf. In
re Baby M., 537 A.2d 1227, 1239 (N.J. 1988).
274 Hoy, 398 A.2d at 113. See also Sorentino I, 378 A.2d at 23-24 (remanded to Chancery
Division and ordered that if applicants for adoption succeed in carrying the burden of proof, then
the court will consider termination of parental rights and allow the adoption).
,71Sorentino 11, 378 A.2d at 22; Hoy, 398 A.2d at 114.
and the order is subject to modification at any time upon a showing of

276
a material change in circumstances.
Psychological parenting is more important in terms of the develop-
ment of the child and the child's mental and emotional health, than as
the coincidence of biological or natural parenthood. 77 Psychological
parenting's application is limited to claims of temporary custody. 78
When the relief sought is either termination of parental rights or legal
adoption, then psychological parenting is inapplicable. These latter le-
gal procedures necessitate a more complex statutory enactment, a more
stringent burden of proof and stricter principles of public policy to
maintain and preserve the integrity of the parent-child relationship. 27 9
The amended statutes280 designating custody to an appropriate
parent and amended statutes2 8 1 for removing children from an abusive
parent are sui generis. The statutes' goals and objectives are to protect
and secure the safety, welfare and best interest of the child. However,
it is readily recognized that a functional or de facto parent does not
acquire legal status.
In a non-traditional family, the biological or adoptive parent has
agreed to share his or her family or child with a live-in partner. It is
reasonable to conclude that the child is receiving benefits from both
adults. There is a greater potential for financial security, emotional sta-
bility, love, care and nurturing. 82 It is necessary only that the child
recognizes both as his or her parents and that the child wishes to con-
28
tinue the parental relationship. 1
There are hundreds of thousands of non-traditional families with
children. Within these familial relationships, an appreciable percentage
will become dysfunctional due to domestic violence. The issues are
"" Hoy, 398 A.2d at 114.

277 Id. at 112 (citing JOSEPH GOLDSTEIN ET AL.. BEYOND THE BEST INTERESTS OF THE CHILD
(1973)).
278 Id. at 114.
*7 Sees, 377 A.2d at 633; Sorentino 1!, 378 A.2d at 22.
180 N.J. STAT. ANN. § 9.2-4 (West 1993).
1 N.J. STAT. ANN. § 9:6-1 to 6-3 (West 1993).

282 See In re Adoption of Evan, 583 N.Y.S.2d 997 (Sur. Ct. 1992). Surrogate Preminger
approved the adoption of a six year-old child to a woman who was the life partner of the artifi-
cially inseminated biological mother. "It seems clear that the proposed adoption is in Evan's best
interest. He is part of a family unit that has been functioning successfully for the past six years."
Id. at 998.
282 Beck v. Beck, 432 A.2d 63, 71 (N.J. 1981) (citing Carolyn S. Bratt, Joint Custody, 67
KY. L.J. 271, 296 (1979)).
whether statutory construction of the Prevention of Domestic Violence

Act of 1991284 protects these children within their home from the vio-
lence of an abusive parent. Does the abuser's relationship with the child
preempt a non-parent claim for protective remedies and temporary
child custody? Will the abuser's legal relationship leave sterile any pos-
sible rights a non-parent may ever acquire notwithstanding the consen-
sual and voluntary in loco parentis status? The objective is not to main-
tain the child in two homes, but to maintain the child within a stable
home environment, and promote school continuity and the child's ac-
cess to relatives and friends.28 5 However, the preference of a child of
sufficient age and capacity must be accorded due weight.28 6 The thresh-
old question is whether the measure of the de facto parent/child rela-
tionship is more important in terms of the development of the child and
his or her mental and emotional health than the coincidence of a
shared dysfunctional biological or adopted parent.28 7 Furthermore,
while adhering to appropriate guidelines and the child's best interest
standard, the inquiry can rationally be limited to a claim of temporary
2 88
custody.
The New Jersey Prevention of Domestic Violence Act of 1991 ex-
pressly provides a clear statement of legislative findings and intentions.
The relevant findings are:
The Legislature finds and declares that domestic violence is a serious crime
against society; that there are thousands of persons in this State who are reg-
ularly beaten, tortured and in some cases even killed by their spouses or co-
habitants; that a significant number of women who are assaulted are preg-
nant; that victims of domestic violence come from all social and economic
backgrounds and ethnic groups; that there is a positive correlation between
spousal abuse and child abuse; and that children, even when they are not
themselves physically assaulted, suffer deep and lasting emotional effects
from exposure to domestic violence. It is therefore the intent of the Legisla-
ture to assure the victims of domestic violence the maximum protectionfrom
289
abuse the law can provide.
It is the intent of the Legislature to stress that the primary duty of a law
enforcement officer when responding to a domestic violence call is to enforce
284 N.J. STAT. ANN. §§ 2C:25-17 to :25-33 (West Supp. 1992).

28' Beck, 432 A.2d at 72.
286 Id. at 73 The court noted that N.J. STAT. ANN. § 9:2-4, as amended Aug. 19, 1990,
excluded the statutory phrase "If a child is of sufficient age and capacity to reason so as to form
an intelligent preference as to custody ....
287 See cases cited supra note 268.
288 Id.
289 N.J. STAT. ANN. § 2C:25-18 (West Supp. 1992) (emphasis added).
the laws allegedly violated and to protect the victim. Further, it is the respon-
sibility of the courts to protect victims of violence that occurs in a family or
family-like setting by providing access to both emergent and long-term civil
and criminal remedies and sanctions, and by ordering those remedies and
sanctions that are available to assure the safety of the victims and the pub-
lic. To that end, the Legislature encourages the training of all police and
judicial personnel in the procedures and enforcement of this act, and about
the social and psychological context in which domestic violence occurs; and it
further encourages the broad application of the remedies available under this
act in the civil and criminal courts of this State. It is further intended that the
official response to domestic violence shall communicate the attitude that vio-
lent behavior will not be excused or tolerated, and shall make clear the fact
that the existing criminal laws and civil remedies created under this act will
be enforced without regard to the fact that the violence grows out of a domes-
tic situation.29
Statutory language and the statute's underlying policy and pur-

poses are sources of statutory intent. 91 Primarily, the question asked is
what mischief is sought to be eliminated and what is the proposed rem-
edy.292 To this end, effect must be given to the legislature's intent.
The statutory excerpts mirror the legislative determination, broad
public policy and commitment against domestic violence to assure vic-
tims the maximum protection under the law. The statutory inclusion of
new domestic violence victims, i.e., non-related same-sex cohabitants, is
an expression of the state's societal interest and public order. These are
prescriptive rights that have an absorbing influence upon the existing
precepts of morality.
An acceptable principle of statutory construction is "the assump-
tion that the Legislature is thoroughly conversant with its own legisla-
tion and the judicial construction of its statutes. 2 93 In this regard, stat-
utes are reviewed, repealed and rearranged to conform with increasing
case law and to accommodate movements reflecting societal behavioral
modifications. Such has occurred concerning recent amendments and
revisions of the parents' right to equal custody statute29 4 and the stat-
Id. (emphasis added).

I90
291 Perez v. Pantasote, 469 A.2d 22, 27 (N.J. 1984).
292 Brewer v. Porch, 249 A.2d 388, 391 (N.J. 1969) (citing Key Agency v. Continental Casu-
alty Co., 155 A.2d 547, 550 (N.J. 1959); San-Lan Builders, Inc. v. Baxendale, 145 A.2d 457, 461
(N.J. 1958)).
'9' Id. (citing Matawan Borough v. Monmouth Cty. Tax Bd., 240 A.2d 8 (N.J. 1968); State
v. Federanko, 139 A.2d 30 (N.J. 1958); City of Newark v. Rockford Furniture Co., 66 A.2d 743
(N.J. App. Div. 1949)).
2.4 N.J. STAT. ANN. § 9:2-4 (West 1993).
ute pertaining to removing a child from abusive parents.2 95 It is within

the past thirty to forty years, an extremely litigious period, that the
voicing of strong antithetical positions has forced legislatures to amend
existing laws to reflect changing public policies. In this contextual set-
ting, the New Jersey legislature closed ranks and enacted legislation
amending the prevention of domestic violence statutes by extending the
protection to a larger category of victims and their families.
Two statutory phrases have had a substantial impact on the defini-
tion of "victim of domestic violence. "296 The expression "or any other
person,'2 97 qualifies the abuser/victim relationship as gender-neutral.
However, the phrase "or a person with whom the victim has a child in
common," 298 now legally enhances particular types .of relationships
with children. The latter phrase encompasses both heterosexual and ho-
mosexual familial relationships. Specifically, the expression en-
franchises, with legal sufficiency, a relationship status that previously
had not been considered under the Act. Namely, in the past one part-
ner was either the natural or adoptive parent while the co-partner, al-
though the primary caretaker and de facto parent, had no legal rela-
tionship with the child. The supposition is that the parent is the abuser
while the victim is the non-parent and primary caretaker. Obviously,
the situation is a typical example when the abuser and victim have a
child in common.
Return to the hypothetical example and ask the question: Did the
child's bonding relationship with the non-parent, primary caretaker and
domestic violence victim establish prescriptive rights and remedies
under the statute? The Prevention of Domestic Violence Act of 1991,
in clear and plain language provides for "[a]n order awarding tempo-
rary custody of a minor child. The court shall presume that the best
interests of the child are served by an award of custody to the non-
abusive parent."2 99 The statute has a general unenumerated or catch
295 N.J. STAT. ANN. §§ 9:6-1 to :6-3 (West 1993).

...The statute provides that:
"[v]ictim of domestic violence" means a person protected under this act and shall
include any person who is 18 years of age or older or who is an emancipated minor and
who has been subjected to domestic violence by a spouse, former spouse, or any other
person who is a present or former household member, or a person with whom the victim
has a child in common.
N.J. STAT. ANN. § 2C:25-19d (West Supp. 1992).
297 Id. (emphasis added).
28 Id. (emphasis added).
299 N.J. STAT. ANN. § 2C:25-29b(1 1) (West Supp. 1992) (emphasis added).
all relief provision that also provides for: "An order granting any other
appropriate relief for the plaintiff and dependent children, provided
that the plaintiff consents to such relief, including relief requested by
the plaintiff at the final hearing, whether or not the plaintiff requested
such relief at the time of granting of the initial emergency order."3 00
Are the designated rights and remedies in the child's best -interest and
do they supersede vested interests of the parent/child relationship?
Query: What is the criteria for establishing a victim/child relationship?
The statute plainly expresses a victim/child relationship that can
qualify for the legislature's intended remedies. The burden of proof
that such a victim/child relationship exists is upon the victim asserting
the relationship.3 0 l There are no legislatively prescribed guidelines or
legislative history as a reference point to determine the qualifying vic-
tim/child relationship status.
The statute's goals and objectives represent the legislature's op-
tions and strategies derived from the interaction of organized cultural
movements confronting society's established value systems.30 2 The
movements are partially identified in this Article and provide the latest
empirical information for the decision maker. However, any amassed
information and knowledge is peripheral, unsettled and inadequate for
long range legal planning. Because events and situations change rap-
idly, the accumulated data do provide some comfort in making provi-
sional planning of those observable events, legal issues and social be-
haviors. The predictions will appear more clear and stable in direct
correlation with available information. An accepted legal theory is that
people will obey laws provided they have adequate knowledge and rea-
sons for conforming with the law. Therefore, the basic premise of a law
3 03
is that it must be capable of guiding the behavior of its subjects.
Is law a matter of plain facts that are subject to rational interpre-
tation? Why are there basic disagreements? Legal philosophers con-
tinue to theorize that the disagreements are not over what the law is
but rather what the law should be. This disagreement is really over
issues of morality and fidelity, not law.3 0 "
300N.J. STAT. ANN. § 2C:25-29b(14) (West Supp. 1992) (emphasis added).

"01The author would follow the procedural rule in Sorentino !!,378 A.2d 18, 21 (N.J. 1977)
placing the burden of proof on those seeking to alter the status quo of the child.
302 JORGEN HABERMAS, TOWARD A RATIONAL SOCIETY: STUDENT PROTEST. SCIENCE AND
POLITICS 90-107 (Jeremy J. Shapiro trans., 1970).

303 JOSEPH RAZ, THE AUTHORITY OF LAW 210-29 (1979).
3' RONALD DWORKIN, LAW'S EMPIRE 1-101 (1986).
On the other hand, the conduct of our rational choices is governed

by strategic action. Strategies are based upon analytic knowledge and
depend only upon the correct evaluation of possible alternative
choices. 0 5 However, the legal dichotomy becomes more distinct for
non-traditional cases, because the real limitation upon the judicial deci-
sional process is the institutional policy that the court's evaluation must
follow in accordance with established instructive procedures and max-
ims.306 In this context, I am introducing a meaningful statutory con-
struction and functional standard that advances the statute's goals and
objectives.
The Prevention of Domestic Violence statute authorizes the Court
to remove an abuser from the home on application for emergent tempo-
rary restraints 07 and upon the court adjudicating a final restraining
order.3 0 8 Obviously, in the best interest of the child, the parent whose
behavioral conduct has rendered the household chaotic and dysfunc-
tional should likewise be temporarily removed from the home. a0 9 What
are the applicable standards the court shall consider to adjudicate the
threshold issue, namely qualifying the acceptability of the non-parent
and primary caretaker for temporary custody?
The fact that the victim has a child in common with the abuser
does not satisfy the legislative dictates and public policy under either
3o HABERMAS, supra note 302, at 92.

30' MALCOLM M. FEELEY, THE PROCESS IS PUNISHMENT 278-98 (1979). "The essence of the
judicial function lies not in the substance of the conclusion reached, but in the procedures by
which that substance is guaranteed. . . . [Judges] accept procedural restraints designed to in-
sure-so far as human nature permits-an impartial and informed outcome of the process of
decision." Id. at 286 (quoting Lon L. Fuller, Collective Bargaining and the Arbitrator, 1963 Wis.
L. REV. 3, 18).
307 N.J. STAT. ANN. § 2C:25-28g (West Supp. 1992) provides that "[e]mergency relief is
applicable if it appears that the plaintiff is in danger of domestic violence." Id. However,
"[elmergency relief may include forbidding the defendant from returning to the [home] scene of
the domestic violence." N.J. STAT. ANN. § 2C:25-28j (West Supp. 1992).
308 N.J. STAT. ANN. § 2C:25-29b(2) provides for an order granting the plaintiff exclusive
possession of the residence or household. . . .N.J. STAT. ANN. § 2C:25-29b(6) provides for:
[An order restraining the defendant from entering the residence, property, school, or
place of employment of the victim or other family or household members of the victim
and requiring the defendant to stay away from any specified place . .. named in the
order and ... frequented regularly by the victim or other family or household members.
30" In construing a statute, the court must give effect to the legislature's intent, language of
the statute, the policy behind the statute and concepts of reasonableness. Coletti v. Union Cty. Bd.
of Chosen Freeholders, 524 A.2d 1270, 1272 (N.J. App. Div. 1987). The statute is interpreted in
a manner that harmonizes all of its parts so as to do justice to its overall meaning. Alexander v.
New Jersey Power & Light Co., 122 A.2d 339, 342 (N.J. 1956).
Title 9, Chapter 2 (Parents' right to legal custody), 1 0° or Title 9, Chap-

ter 6 (Abuse, abandonment, cruelty and neglect of child). 3 " However,
the Prevention of Domestic Violence Act of 1991 adopts the principal
objective of the above statutes, which is to assure the safety of innocent
victims and household family members from acts of domestic violence
by removing the offender immediately."'
The legislative rationality, incorporating the expression "or a per-
son with whom the victim has a child in common," 313 is an intermedi-
ate level between Chapters 2 and 6 of Title 9 statutes. The issue is not
an unfit parent, in which case the child should be removed from the
home. Nor is the position urged that the non-parent, primary caretaker
and victim has succeeded to a statutory -status equal with the parent,
therefore qualifying for custody.
I suggest the following strategies as the alternative solutions that
give equal credence to judicial finding under subjective and objective
standards. The court should make findings on the evidence and adjudi-
cate the victim, non-parent, and primary caretaker qualified for tempo-
rary custody under the Prevention of Domestic Violence Act. The basic
issues and findings under the proposed standards can be decided on the
return date'for a final restraining order.
Subjective Standards Measuring Appropriatenessfor

Temporary Child Custody to a Non-Parent Primary Caretaker
The standard is that a preponderance of credible evidence has
shown that a parent/child-like bond has been created. Factors consid-
ered are intensity, sincerity and commitment of the love and caring,
measured by:
310 N.J. STAT. ANN. § 9:2-4 (West 1993).

3' N.J. STAT. ANN. § 9:6-1 to :6-3 (West 1993).
31 N.J.
STAT. ANN. § 2C:25-18 (West Supp. 1992) (legislative findings and intentions). N.J.
STAT. ANN. § 2C:25-21a provides protection for the person claiming to be a victim of domestic
violence by allowing the responding law enforcement officer, with probable cause that domestic
violence has occurred, to arrest the alleged abuser and sign the criminal complaint on behalf of
the victim if: (I) the victim exhibits signs of an injury caused by an act of domestic violence: or
(2) a warrant is in effect; or (3) if there is probable cause to believe that the defendant had been
served with a restraining order and that the person has violated it; or (4) if there is probable cause
to believe that a weapon has been used to commit an act of domestic violence. N.J. STAT. ANN. §
2C:25-23 mandates that the officer provide a comprehensive notice to the victim, written in both
English and Spanish, apprising the victim of (i) the right to get a temporary restraining order
(TRO); and (ii) the kinds of things a judge can order in a TRO; and (iii) the right to file a
criminal complaint against the attacker.
313 N.J. STAT. ANN. § 2C:25-19d (West Supp. 1992) (emphasis added).
a) Emotional interdependency;
b) Psychological dependency;
c) Secure feeling;
d) Comfort level;
e) Stable relationship;
f) Attitude; and
g) Reliability.
Objective Standards Determining Strategiesfor

Temporary Child Custody to a Non-Parent Primary Caretaker
The standard is that a preponderance of credible evidence shows
the following factors:
a) Written/oral agreement between the parties;
b) Time, length and duration of primary childcaring;
c) Age, maturity, health and dependency of the child upon the
primary caretaker;
d) Age, maturity, health and articulated reasons for dependency
by the primary caretaker;
e) Willingness to continue primary caretaker responsibilities for
an indefinite period;
f) Evaluating benefits child derives from the existing environmen-
tal conditions, i.e., maintaining contacts with his/her school, religious
institution, friends, relatives and the community; and
g) Subject to a court order agreement denoting such specifics as
parent-child visitation arrangements, support, house maintenance, and
counseling.
The suggested statutory construction applied to the Prevention of
Domestic Violence Act will provide legal recognition to the non-parent
child relationship status under limited situations. The statutory con-
struction and proposed standards are not contrary to New Jersey stat-
utes or case law, and they are not offensive to the State's public policy.
On the contrary, the proposed statutory construction would be consis-
tent with promoting the purposes, goals and objectives of the amended
Prevention of Domestic Violence Act of 1991.
A domestic violence temporary custody order is incongruous with

a custody award under Chapter 2 of Title 9:31" It is not proposed that
there is neither case similarity, fact patterns, legal issues, nor persua-
sive legal argument applicable to the cited custody and visitation cases
that arose from non-traditional familial relationships. Those cases have
held valid the statutory restriction that prohibited intrusion into a par-
ent/child relationship by a non-parent.
The proposed paradigm represents an adequate, factual situation
that would give essence to the statutory language "or a person with
whom the victim has a child in common. '3 15 A statutory construction
that empowers the Court to adjudicate temporary custody to a non-
parent victim is within the statute's goals. The proposed standards will
fairly and uniformly provide the trial judge with guidelines to deter-
mine victim/child acceptability. The standards give due consideration
to all the circumstances and to everything that is relevant to the child's
best interest.31
The process is the measurement device that also justifies trans-
forming the non-parent primary caretaker into a recognized parent/
child status. This particular construction and statute application would
extend rights and remedies under the Prevention of Domestic Violence
Act to victims and children of non-traditional families.
IX. CONCLUSION
Domestic violence is culturally pervasive, legally and morally

wrong, anti-social human behavior. Courts and law enforcement of-
ficers are statutorily mandated to provide immediate protection to the
victims and their family. A family, either traditional or non-traditional,
is a cohesive unit that offers structure, "classical identity" and a com-
mon understanding among all people. Judicial precedent has recognized
in many jurisdictions that a homosexual (non-traditional) family is in-
cluded in this cohesive unit and is entitled to the benefits of state
health, welfare and police protection available to all citizens.
Credible evidence strongly suggests that gay and lesbian couples
are susceptible to domestic violence, just like their heterosexual coun-
terparts. The asserted hypothesis is amply supported by the results
31, N.J. STAT. ANN. § 9:2-4 (West 1993).

31 N.J. STAT. ANN. § 2C:25-19d (West Supp. 1992) (emphasis added).
316 In re Baby M., 537 A.2d 1227, 1258 (N.J. 1988).
taken from a nationwide empirical survey and conclusions derived from

relevant scientific research. The research projects were conducted by
psychologists, sociologists and mental health professionals. They con-
cluded that domestic violence is not only prevalent in homosexual rela-
tionships, but its abusive characteristics are similarly identifiable with
those within the heterosexual relationships. Children are family mem-
bers in either relationship and the common factor is that are innocent
victims of the domestic violence committed in the home.
The development and legal recognition of non-traditional familial
relationships in the United States has brought to the fore a pragmatic
necessity to recognize children's rights and interest within these uncom-
mon relationships. State legislatures had been obliged to enact and sup-
plement legislation that identified applicable domestic victims and do-
mestic violence offenses and prescribed civil remedies that protected the
victim from the abuser. The state's legislatures, courts and local gov-
ernments have reacted differently to domestic violence behavior. The
majority of states expanded the statutory jurisdiction to protect same-
sex non-related cohabitants. This category would include any two co-
habiting non-related adult persons of the same gender who constitute a
family or reside in the same household. The new category incorporates
cohabiting homosexual couples and their children living in a family-like
setting.
This Article's objective is to identify non-related, same-sex cohabi-
tants as non-traditional family relationships. Cohabitants are com-
monly referred to as domestic partners and they represent the newly
recognized class of domestic violence subjects. An array of specifically
peculiar legal issues were introduced, some of first impression, in addi-
tion to a legal hypothesis that proposes a paradigm of emerging legal
principles. This Article reveals the development of productive forces
that are influencing the recognition of non-traditional families in a
traditional society. It is the level of development of the productive
forces that organizes a systematic confrontation and calls into question
the traditional legal principles.
Disputes between parties are submitted to a court for hearings,

exploration of new principles and ultimate resolutions. Likewise, the
court follows the doctrine of stare decisis. The substantive and proce-
dural rules are systematically analyzed, applied or modified. Statutes
are subjected to constitutional scrutiny and judicial construction in
search of the legislative intent, goals and public policy. The parties'
factual contentions, arguments and legal theories undergo a transition

and emerge as acceptable legal principles. The court re-establishes the
legal principles while it promotes and publicizes its rules for the public
good.
The law represents "a 'body of binding obligations regarded as
[sic] right[s] by one party and acknowledged as the duty by the other'
which ha[ve] been reinstitutionalized within the legal institution so that
society can continue to function in an orderly manner on the basis of
rules so maintained. ' 317 The phenomenon is called the justification pro-
cess. It is hoped that this Article will be of assistance to the legal bar
and bench in this ever changing pluralist society.
317 Paul Bohannan, The Differing Realms of the Law, 67-2 AM. ANTHROPOLOGIST 33, 36
(1965) (quoting BRONISLAW MALINOWSKI. CRIME AND CUSTOM IN SAVAGE SOCIETY 58 (1926))
(alteration in original).
APPENDIX I
Does the law

protect same-sex,
non-related
State Citation cohabitants? Notes
Alabama ALA. CODE § 30- No "or other persons related by
5-2(4) (1989) consanguinity or affinity ....
Alaska ALASKA STAT. § Yes "member of the social unit
25.35.060 (1991 comprised of those living together
Supp.) in the same dwelling as the
respondent ....
Arizona ARIZ. REV. STAT. No "persons of the opposite sex or
ANN. § 13-3601B . . .related . . . by consanguinity
(1992) or affinity to the second degree."
Arkansas ARK. CODE ANN. Yes "or persons who are presently or
§ 9-15-103(b) in the past have resided or
(Supp. 1991) cohabitated together."
California CAL. PENAL Yes "or any person who regularly

CODE § 1000.6 resides or who within the previous
(West 1985) six months regularly resided in
the household."
Colorado COLO. REV. STAT. Yes "adult, minor child or
§ 14-4-101 (Supp. emancipated minor with whom the
1992) actor is a current or former
relation, or with whom the actor
is living or has lived in the same
domicile, or with whom the actor
is involved or has been involved in
an intimate relationship."
Connecticut CONN. GEN. Yes "persons 16 years of age or older
STAT. § 46b- [not related by blood or marriage]
38a(2)(D) (Supp. . . .presently residing together or
1992) who have resided together. .... "
Delaware DEL. CODE ANN. No Families only.
tit. 10, § 901(9)
(Supp. 1992)
District of D.C. CODE ANN. Yes "related by blood, legal custody
Columbia § 16-1001(5)(A) marriage, having a child in
(Supp. 1992) common, or with whom the
offender shares or has shared,
within the last year, a mutual
residence .. "
Florida FLA. STAT. ANN. No Related by blood or marriage

§ 741.30 (West only.
Supp. 1993)
Georgia GA. CODE ANN. § Yes "or other persons living or

19-13-1 (Michie formerly living in the same
Supp. 1992) household .. "
Hawaii HAW. REV. STAT. Yes "and persons jointly residing or

§ 586-1 (Supp. formerly residing in the same
1992) dwelling unit."
Idaho IDAHO CODE § Yes "persons who reside or who have

39-6303(2) resided together ... "
(Supp. 1992)
Illinois ILL. ANN. STAT. Yes "persons who share or formerly
ch. 40, para. shared a common dwelling .. "
2311-3(5) (Smith-
Hurd Supp.
1992)
Indiana IND. CODE ANN. Yes May petition for protective order
§ 34-4-5.1-2 on behalf of self, household
(Burns 1993) member, or property if "abused or
threatened with abuse by another"
(not limited to relative or
household member in any way).
Iowa IOWA CODE ANN. Yes "Family or household members

§ 236.2(4) (West means . . . persons
Supp. 1992) cohabiting ....
Kansas KAN. STAT. ANN. Yes "persons who reside together, or
§ 60-3102 (Supp. who formerly resided together and
1992) both parties continue to have
access to the residence. ... "
Kentucky Ky. REV. STAT. Maybe Family members or unmarried

ANN. § 403.720 parents of a child, or "a member
(Baldwin 1990 of an unmarried couple who are
Supp. & 1992 living together or have formerly
Ky. Acts 172) lived together."
Louisiana LA. REV. STAT. Maybe, "and any person living in the
ANN. § If Children same residence with the defendant
46:2132(4) (West Involved as a spouse, whether married or
Supp. 1993) not, if a minor child or children
also live in the residence. . ....
Maine ME. REV. STAT. Yes "and for the purposes of this
ANN. tit. 19, § chapter only, includes individuals
762(4) (West presently or formerly living

Supp. 1992) together as sexual partners."
Maryland MD. FAM. LAW Yes " 'Cohabitant' means a person

CODE ANN. § 4- who has had a sexual relationship
501(c) (Supp. with the respondent and resided
1992) with the respondent in the home
for a period of at least 90 days
within I year before the filing of
the petition."
Massachusetts MASS. ANN. LAWS Yes "persons who.. are or were

ch. 209A, § I residing in the same
(Law. Co-op. household .. "
Supp. 1992)
Michigan MICH. COMP. Maybe allows a peace officer to make an

LAWS § 764.15a arrest without a warrant when an
(1982 & Supp. assault and battery or infliction of
1992) serious injury within a household
MICH. STAT. "has taken place or is taking
ANN. § 16.611(1) place and the person . . .
(Callagan 1988) committing the violation is a
spouse, a former spouse, or a
person residing or having resided
in the same household as the
victim. .. "
Minnesota MINN. STAT. Yes "and persons who are presently

ANN. § 518B.01, residing together or who have
Subd. 2(b) (West resided together in the past. .. "
1993)
Mississippi Miss. CODE ANN. No "persons living as spouses, parents

§ 93-21-3 (Supp. and children. .. "
1992)
Missouri Mo. ANN. STAT. No Opposite sex only.

§ 455.010(5)
(Vernon Supp.
1992)
Montana MONT. CODE No Opposite sex only.

ANN. § 45-5-
206(2) (1991)
Nebraska NEB. REV. STAT. Yes "persons who are presently

§ 42-903(3) residing together or who have
(1988) resided together in the past ....
Nevada NEV. REV. STAT. Yes "with whom he is or was actually

ANN. § 33.018 residing .. "
(Michie 1986)
New N.H. REV. STAT. Yes "persons cohabiting with each

Hampshire ANN. § 173-B:l other, persons who cohabited with
(1990 & Supp. each other but who no longer
1992) share the same residence; . . .
[or] persons currently or formerly
involved in a romantic
relationship, whether or not such
relationship was ever sexually
consummated."
New Jersey N.J. STAT. ANN. Yes "or any other person who is a
2C:25-19(3)(d) present or former household
(West Supp. member .. "
1992)
New Mexico N.M. STAT. ANN. Yes "spouse, former spouse, family
§ 40-13-2 (Michie member, present or former
1989) member or co-parent of a
child .. "
New York N.Y. Soc. SERV. Yes "unrelated persons who are
LAW § 459- continually or at regular intervals
a(2)(e) living in the same household or
(McKinney 1992) who have in the past continually
or at regular intervals lived in the
same household .. "
North N.C. GEN. STAT. No Opposite sex only.
Carolina § 50B-I (1989)
North Dakota N.D. CENT. CODE Yes "persons who are presently
§ 14-07.1-01(4) residing together or who have
(1991) resided together in the past, .
persons who are in a dating
relationship, and, for the purpose
of the issuance of a domestic
violence protection order, any
other person with a sufficient
relationship to the abusing person
as determined by the court. .. "
Ohio OHIO REV. CODE Yes "a person who is living or has
ANN. § 3113.33 lived with the person committing
(Banks-Baldwin the domestic violence in a
1992) common law marital relationship,
who otherwise is cohabiting with
the person committing the
domestic violence, or who
otherwise has cohabited with the
person committing the domestic
violence within one year prior to
the date of the alleged occurance
of the act in question .... "
(Ohio court has interpreted spouse
to protect same-sex non-related
cohabitants).
Oklahoma OKLA. STAT. Yes "persons living in the same
ANN. tit. 22, § household or who formerly lived
60.1 (West 1992) in the same household."
Oregon OR. REV. STAT. § Yes "persons cohabiting with each
107.705 (1991) other . . . persons who have
cohabited with each other within
two years immediately preceding
the filing by one of them ... "
Pennsylvania PA. CONS. STAT. No "persons living as spouses or who
ANN. tit. 23, § lived as spouses . . .current or
6012(a) (1991) former sexual or intimate
partners ... "
Rhode Island R.I. GEN. LAWS § Maybe Only "spouse, former spouse,
15-15-1 (1988 & minor children, or persons who
Supp. 1992) are related by blood or marriage
• . . [or] persons who together are
the legal parents of one or more
children" are protected. But see §
15-15-5(b) "unmarried/not related
cohabitants within the the twelve
(12) months," which provides a
separate form of notification for
victims who are "not married or
related to . . .attacker, but have
resided with him or her within the
past twelve (12) months . . ."can
go to District Court and request a
restraining order directing
attacker to leave household.
South S.C. CODE ANN. No "spouses, former spouses, parents
Carolina § 20-4-20(b) and children, and persons related
(Law Co-op. by consanguinity or affinity within
1985) the second degree."
South Dakota S.D. CODIFIED Yes "persons living in the same
LAWS ANN. § 25- household, persons who have lived
10-1(2) (1992) together.
Tennessee TENN. CODE Yes "other persons jointly residing in
ANN. § 36-3- the same dwelling unit .. "
601(4)(F) (1991)
Texas TEx. FAM. CODE Yes "persons who previously lived in a
ANN. § household . . . persons living
71.01 (b)(4)-(5) together in the same dwelling,
(West Supp. whether or not they are related to
1993) each other."
Utah UTAH CODE ANN. Yes " 'Cohabitant' means an
§ 30-6-1(2)(e) emancipated person . . . who
(Supp. 1992) resides or has resided in the same
residence."
Vermont VT. STAT. ANN. Yes "persons living together or sharing
tit. 15, § 1101(2) occupancy and persons who have
(Supp. 1992) lived together in a sexual
relationship."
Virginia VA. CODE ANN. § Yes "any individual who cohabits or
16.1-228 (Michie who, within the previous twelve
Supp. 1992) months, cohabited with the
person, and any children of either
of them residing in the same hime
with the person."
Washington WASH. REV. Yes "adult persons who are presently
CODE ANN. § residing together or who have
10.99.020(1) resided together in the past."
(Supp. 1993)
West Virginia W. VA. CODE § Yes "current or former sexual or
48-2A-2 (Supp. intimate partners . . . persons
1992) who are presently or in the past
have resided or cohabited
together .. "
Wisconsin WIs. STAT. ANN. Yes "a person currently or formerly
46.95(1)(b) (West residing in a place of abode with
Supp. 1992) another person."
Wyoming WYO. STAT. § 35- Yes "other adults sharing common
21-102(a)(iv)(F) living quarters."
(1988)
APPENDIX II
Domestic Violence Legislation
Same-Sex Non-Related Cohabitants Protection
Provide Deny Subject to

Protection Protection Interpretation
Alaska Alabama Kentucky
Arkansas Arizona Louisiana
California Delaware Michigan
Colorado Florida Rhode Island
Connecticut Mississippi
District of Columbia Missouri
Georgia Montana
Hawaii North Carolina
Idaho Pennsylvania
Illinois South Carolina
Indiana
Iowa
Kansas
Maine
Maryland
Massachusetts
Minnesota
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico Recapitulation
New York Count
North Dakota
Ohio Provide 37
Oklahoma Deny 10
Oregon Undecided 4
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
1992-931 DOMESTIC VIOLENCE 619
APPENDIX III
West Hollywood Domestic Partnership Ordinance No. 22
SECTION (1)(a) DEFINITION

The persons are not related by blood closer than would bar marriage in
the State of California;
(1) The persons are not married nor related by marriage;
(2) The persons share the common necessities of life;
(3) The persons are eighteen (18) years old or older;
(4) The persons are competent to enter a contract;
(5) The persons declare that they are each other's sole domestic partner;
(6) The persons are responsible for each other's welfare;
(7) The persons agree to notify the city of any change in the status of their
domestic partnership;
(8) Neither person has declared that he or she has a different domestic
partnership;
(9) The persons file a statement of domestic partnership as set forth in § 2 of
this ordinance.
SECTION (2)(a) CONTENTS
Includes the several characteristics defined in Section (1)(a), one through
nine, inclusive with the added contents of the partner's signature and address.
SECTION (2)(b) CONTENTS
Partners may amend the statement at any time; (Note: Only to change an
address), and the process is by filing a new statement.
SECTION (2)(c) CONTENTS
Any (domestic partner) may terminate at (anytime) by filing a termina-
tion statement with the city clerk. The (partner) under oath, declares (1) the
domestic partnership is terminated, and (2) a copy of the termination state-
ment has been mailed to the other domestic partner.
SECTION (2)(d) CONTENTS
Prohibits refiling a new affidavit of domestic partnership within six (6)
months following the termination of a previous partnership.
Highlights of the West Hollywood Ordinance and the eleven other domes-
tic partnership acts follow:
WEST HOLLYWOOD, CALIFORNIA POPULATION 36,118

Domestic Partnership created
by Ordinance, February 1985.
PROFILE-Registered Couples Public Registration Date
213 Gay Couples 343 couples registered for
71 Lesbian Couples the period 2/85 to 1/13/92
71 Heterosexual Couples
355 Total Registered Couples
Terms of Commitments
5 Couples have been together for years
Terminations
62 Voluntary terminations
7 Terminations due to death
3 Heterosexual couples married
Benefits to Domestic Partner
1985 - Visitation rights allowed to a patient's domestic partner to visit the
patient confined in health care facilities, convalescent facilities and jails. Be-
reavement leave.
1989 - Medical, dental, vision service, and life insurance benefits extended to
a city employee domestic partner under the employee's insurance plan.
1990 - Tenant anti-eviction protection provided to the surviving domestic
partner under the city's rent stablization ordinance.
West Hollywood, California resource materials are courtesy of the late David
M. Scott, Records Clerk and J. Kenneth Poe, Records Manager, City of West
Hollywood.
BERKELEY, CALIFORNIA POPULATION 102,724

Domestic Partnership created 69 Couples Registered
by Ordinance, April 1985 No Profile Data Available
Private registration permitted.
PROFILE-Registered Couples Public Registration Data
21 Homosexual Couples 254 Couples Registered
109 Heterosexual Couples - 124 Terminations
130 Total Registered Couples 130 remaining registered couples
for the period 4/85 to 1/15/92
1992-93] DOMESTIC VIOLENCE 621 "
1985 - Visitation rights, medical, dental, and bereavement leave.
Berkeley, California resource materials provided by Steven E. Replogle, Risks

Manager, City of Berkeley.
SANTA CRUZ, CALIFORNIA POPULATION 50,000

by Ordinance, May 1986.

3 Homosexual Couples 20 Couples Registered for
17 Heterosexual Couples the period 5/86 to 1/13/92
Medical, dental and bereavement leave.
Santa Cruz, California resource materials provided by Erwin H. Young, Per-

sonnel Director, City of Santa Cruz.
LOS ANGELES, CALIFORNIA POPULATION 3,485,398
Domestic Partnership created No Registration Data

by Ordinance, March 1988. Available
Medical, dental and sick or bereavement leave.

Los Angeles, California resource materials provided by Ms. Elias Martinez,
City Clerk of Los Angeles.
TAKOMA PARK, MARYLAND POPULATION 16,700

Domestic Partnership created by resolution, October 13, 1987. Subsequently
incorporated in the city's code definition of "immediate family" in § 83-
108(a)(6), Chapter on Personnel Procedures. The city's collective bargaining
law - Chapter 8B, Article 2, of the Takoma Park Code.
I Gay
2 Lesbians
5 Heterosexuals
8 Registered (unofficial count)

Bereavement and family sick leave. Tenant's right of first refusal or opportu-
nity to purchase.
Takoma Park, Maryland resource materials provided by Susan Silber, Esq.,
City Attorney,. City of Takoma Park.
NEW YORK, NEW YORK POPULATION 7,322,564

Domestic Partnership created No Registration Data
by Executive Order 123, on Available
August 7, 1989, Edward I.
Koch, Mayor.
Private Registration Permitted.
Bereavement leave for municipal employees.
New York, New York resource materials provided by Marjorie J. Hill, Ph.D.,
Mayor's Office for the Lesbian and Gay Community, City of New York.
SEATTLE, WASHINGTON POPULATION 516,259

by Ordinance, March 1990.
35 Heterosexual Couples 55 Couples registered by
15 Lesbian Couples March 28, 1990
5 Gay Couples
By May 1990, 200 city employees had registered as domestic partners, which
represented 2% of the city's workforce. Approximately 50% or 25% are ei-
ther lesbian or gay.
Sick and bereavement leave.
Seattle, Washington resource materials provided by Dough Phillips, Mayor's
Lesbian/Gay Commission, Seattle Office for Women's Rights.
MADISON, WISCONSIN POPULATION 191,262

by Ordinance, June 1990.
33 Lesbian Couples 65 Couples Registered
15 Gay Couples - 3 Terminated
7 Heterosexual Couples 62 Remaining Registered
7 Unable to Determine Couples for the period
6-2 Total Registered Couples 6/90 to 1/10/92
Domestic partners may qualify for a family membership rate at the
Y.M.C.A., Y.W.C.A. and most health clubs; they qualify for family housing
at the University of Wisconsin; and city employees receive bereavement leave.
Madison, Wisconsin resource materials provided by Louise Droster, Deputy
City Clerk, City of Madison.
ITHACA, NEW YORK POPULATION 29,541

by Ordinance, August 7, 1990.
15 Lesbian Couples 20 Couples Registered for
5 Gay Couples the period of 8/90 to
2 Heterosexual Couples 1/13/92
22 Total Registered Couples No Terminations
Benefits to Domestic Partners
Sick and bereavement leave.
Ithaca, New York resource materials provided by Julie C. Boyle, Deputy City
Clerk, City of Ithaca.
LAGUNA BEACH, CALIFORNIA POPULATION 23,170

by Memorandum of Understanding,
August 1990. The program is
adopted by the council as part
of the labor agreement with the
unions. The domestic partner
regulations are authorized by resolution.
Heterosexual Couples 12 Couples Registered

Terminations - 5 Terminations
Couples Married 7 Remaining Registered
Couples Dissolved Couples for the Period
the Relationship 8/90 to 1/13/92
Medical, dental and life insurance.
Laguna Beach, California resource materials provided by Kenneth C. Frank,

City Manager, Laguna Beach.
CITY AND COUNTY OF

SAN FRANCISCO, CALIFORNIA POPULATION 723,959
Domestic Partnership was No Registration Data

created by Ordinance and Available concerning
a referendum vote in the gender classification
November 6, 1990 election.
Proposition K passed and the Public Registration Data
legislation was signed on
January 15, 1991 and became 833 Couples Registered for
effective on Valentine's Day the period 2/14/91 to
February 14, 1991. 8/7/91. Reported is 3 or
Registration Statistics 4 terminations. No
2/14/91 to 8/7/91. information as to gender.
In May 1991, the Health Service System had open enrollment for domestic
partners at group rates, which became effective in June 1991. Unlike hetero-
sexuals, where the city pays the premium for the employee and their spouse,
the domestic partner premium is paid by the employee. 160 new persons en-
rolled as domestic partners and were admitted for health insurance.
San Francisco, California resource materials provided by Larry Brinkin, Rep-

resentative, Human Rights Commission and Rick Ruvolo, Legislative Assis-
tant to Harry G. Britt, President, Board of Supervisors, City of San Francisco.
MINNEAPOLIS, MINNESOTA POPULATION 368,383

by Ordinance, February 1991. Public Registration Data
133 Couples Registered for
the period 2/19/91 to
8/1/91.
No Registration Data
Available concerning
gender classification.
Visitation in hospitals and all health care facilities.
Minneapolis, Minnesota resource materials provided by Merry Keefe, City
Clerk, Minneapolis.
APPENDIX IV
= 44
0 Po
I, Io C.)
40 0
4.)4
U~N
1992-931 DOMESTIC VIOLENCE 627
APPENDIX V
Table 37. Personal Crimes of Violence, 1990:

Number of victimizations and victimization rates for persons age 12
and over, by type of crime and victim-offender relationship.
Rate per 1,000 persons age 12 and over
Involving Strangers Involving Non-Strangers
Type of crime Number Rate Number Rate
Crimes of violence 3,668,890 18.0 2,339,900 11.5
Completed 1,439,310 7.1 982,210 4.8
Attempted 2,229,570 11.0 1,357,680 6.7
Rape 54,230 0.3 76,030 0.4
Completed 22,410 0.1 40,420 0.2
Attempted 31,810 0.2 35,610 0.2
Robbery 941,230 4.6 208,470 1.0
Completed 640,780 3.2 159,720 0.8
With Injury 208,850 1.0 77,170 0.4
From Serious Assault 90,880 0.4 32,860 0.2
From Minor Assault 117,970 0.6 44,310 0.2
Without Injury 431,930 2.1 82,550 0.4
Attempted 300,440 1.5 48,750 0.2
With Injury 87,870 0.4 22,500 0.1
From Serious Assault 34,560 0.2 9,370 0.0*
From Minor Assault 53,310 0.3 13,130 0.1*
Without Injury 212,560 1.0 26,240 0.1
Assault 2,673,420 13.2 2,055,380 10.1
Aggravated 1,035,120 5.1 565,550 2.8
Completed with Injury 364,220 1.8 262,780 1.3
Attempted with Weapon 670,890 3.3 302,760 1.5
Simple 1,638,300 8.1 1,489,830 7.3
Completed with Injury 411,890 2.0 519,280 2.6
Attempted without Weapon 1,226,410 6.0 970,540 4.8
Note: Detail may not add to total shown because of rounding.
* Estimate is based on about 10 or fewer sample cases.
Data information is correlated with the graphic presentation in Appendix IV - Victim-Offender
Relationship and Characteristics of Offenders. CRIMINAL VICTIMIZATION IN THE UNITED STATES.
1990, NCJ-134126 (Feb. 1992).

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HOMOSEXUALS AS A NEW CLASS OF

Hon. Mac D. Hunter, J.S.C.*

New Jersey's "Prevention of Domestic Violence Act" was enacted

Henceforth, the new class of domestic violence victims as defined

N.J. STAT. ANN. § 2C:25-18 (West Supp. 1992).

New Jersey has designated thirteen specific acts of criminal behav-

Anti-social behavior such as harassment need only be alleged by

' The thirteen acts designated under the statute are:

Other issues considered in this Article involve the unprecedented

II. THE CHANGING SOCIETY

There are several million non-traditional families throughout the

ther by means of artificial insemination of a lesbian partner" or

clear characteristics that previously identified the traditional nuclear

III. CURRENT NATIONWIDE POPULATION SURVEY

lated to gays or lesbians per se; nevertheless, the household occupants

Age profile, AGE CATEGORY MALE FEMALE

Totals: same-sex male households 822,000

The statistical data alone does not represent a persuasive argu-

ported by different social behaviors and novel legal theories, on the

IV. DOMESTIC PARTNERSHIP

A recent phenomenon, commonly known as "Domestic Partner-

heterosexual couples who publicly declare an emotional and economic

A. Historical Beginnings of Domestic Partnership

The concept originated through a strong political lobbying effort

The Board of Supervisors twice passed this legislation, but each

Then, in 1988, Harry Britt, President of the Board of Supervisors,

ships comparable to married couples.4 9 The proposed legislation would

compared to 82,342 "yes" votes, representing 49.5%)."' The Church

In 1990 a revised domestic partner bill was introduced and placed

The Domestic Partnership Bill was designated as Proposition K on

Thus, the homosexual community finally secured recognition after

' See supra notes 55-56.

" See Appendix III, San Francisco sources.

B. Current Status of Domestic Partnership

On February 21, 1985, the West Hollywood city council unani-

C. Domestic PartnershipLegal Analysis

Domestic partnership is not a legal substitute for marriage. Only

" Paula L. Ettelbrick, Domestic Partnership Legislation: A National Overview (October

V. DOMESTIC VIOLENCE STATISTICS AND EQUAL PROTECTION

In 1990 most violent crimes in the United States were committed

NCJ-126826, at 2, tbl. 3 (Jan. 1991).

beries, and 3% were rapes. 83 Of the assaults, approximately 25% in-

are same-sex, non-related and cohabiting with the offender, whereas

same-sex cohabitants, those household families consisting of gays, lesbi-

VI. HOMOSEXUAL DOMESTIC VIOLENCE

Domestic violence has existed in homosexual relationships for cen-

violence in the United States.

occur in heterosexual cohabiting couples than in married couples."0 7

107 Id. (Sack, Keller & Howard 1982).

Gay and lesbian relationships have sustained unreported domestic

Likewise, there is a similar publication of myths that pertain to gay

MYTH: Domestic violence only affects certain groups of gay men.

MYTH: The problem in relationships between gay men is really fighting or

FACT: The issue in domestic violence is control.