Law and Untraditional Families

Anyone who's been watching the news lately will appreciate that the legal status of non-traditional families is changing. The increasing legality of gay marriage has changed a lot of traditional family law practice, and this sea change heralds an increasing acceptance of other non-traditional family structures, too. Though do be cautious, because the inevitable backlash against social progress can express itself in unpredictable ways. In this post I talk about some of the implications of current and pending law for people in family structures that differ from the norm. 

1. Gay Marriage Issues

First and most obviously, in an increasing number of states, gay couples can get married on the same terms as straight couples. Many gay couples are learning how broad a relationship marriage really is, and unfortunately many are running into problems with organizations that take a stand against gay marriage for whatever reason. Health care providers are particularly pernicious, because they often have a religious charter and can be trenchant in their refusal to provide a gay spouse the rights and privileges extended to a straight spouse.

Happily there are laws that speak to this sort of discrimination, and the position of Verbeck Law at present is that gay couples shouldn't be shy to lawyer up when faced with discrimination in an important field like health care. It costs less than you'd think, and often hospitals are more frightened of lawyers than they are of gay marriage. Both state and federal laws prohibit discrimination in health care, and often providers get away with it simply because no one thinks they can challenge it. You may even have some success here in states in which gay marriage isn't recognized, simply due to the strong aversion healthcare providers have to litigation and poor publicity. 

The second area affected by increasing access to marriage is the expansion of all the laws that extend benefits or apply restrictions to married couples. Married couples are essentially one legal unit in many areas of law, and previously it was extremely challenging to set up all these relationships for a gay couple. Now it's easy, and it can be hard to grasp the full implications. Gay spouses are also business partners, fiduciaries, and health care designates in most places, and for the first time many gay couples are coming to wonder what will happen to their IRA when they tie the knot. Negotiating these questions can be tricky, and we recommend an attorney who's abreast of current legislative trends and who knows how to route around prejudiced organizations. 

2. Other Non-traditional Families: Poly et al. 


There are also ramifications for other non-traditional families. My generation uses the term 'poly' to refer to romantic or sexual relationships that involve more than two people, and increasingly it's common for children to be raised in these households. (See on this subject the work of Dr. Elizabeth Sheff) Arguably this is the historical norm, but regardless, the custody laws and medical proxy laws are written for one or two person relationships. Accordingly, poly parents can still face significant legal hurdles and discrimination. 

Custody is the most common problem poly families face. An ex-spouse may not understand how sex and relationships happen, and may object strenuously to children growing up in that environment. It can be difficult to explain the difference between a mature poly household and a dissolute party house, and again, the law isn't really set up to evaluate these sorts of relationships. 

Frankly I would strongly suggest that anyone with this sort of relationship and children who are subject to a custody judgment find a lawyer familiar with poly pronto, but I know that's not always feasible. There are, however, steps you can take that will help your case, should it come to court, and which will save your eventual lawyer a lot of time. One of the best is to set down the child-raising parameters in writing, as simply as you can, in a letter or email to the children's other parent. Most poly groups never go to the trouble to set down obvious things like the simple fact that no one is having sex in front of the children, but doing so goes a long way towards establishing parenting bona fides. A letter confirming this will make sure the other parent knows, and you can prove they know. 

Similarly, you should have some sort of written record of who is actually providing parenting. Ideally, people in the household should know that there is a potential custody issue, and should be prepared to explain their parenting role in court, should it come to that. Short of that, you should communicate with the other parent, in writing, about who's taking care of the children when. Hopefully it's obvious that these people should be, as the saying goes, of good moral standing. If someone is helping raise your kids, ask about prior convictions. Poly families start at a disadvantage in court, and handling things like past convictions or outstanding child support is a lot more challenging. 

Notably, if you find some past convictions, consider contacting us about expungement

Last but not least, bear in mind that a poly schema is not normal, and think on occasion about how to best explain it to people in more traditional relationships. In my experience, poly folk tend to stick together, and it can be hard to remember what a strange beast it is. With some forethought, and with some legal help, you can present your family as the loving environment it is, and convince a court to leave custody rights in place.