Almost three years ago, the Michigan Supreme Court ruled that granting health benefits to same-sex domestic partners of government employees was a violation of the state's "defense of marriage" constitutional amendment approved by the voters in 2004.

Well the Michigan Civil Service Commission voted last week for a "work around" that will actually expand eligibility for benefits. What's unconstitutional is recognition of unmarried couples, so the benefits can now go to anyone who has lived with the state employee for at least a year and that person's children. The person is called an "other eligible adult." About half the state workforce will be covered by the new policy, which goes into effect October 1. Coverage was negotiated with two unions, UAW and SEIU, and benefits were extended to some nonunion employees as well. Other unions are likely to negotiate for the benefits when their contracts expire later in the year. ...

I am frankly surprised by the simplicity of these eligibility requirements. Most of the employee benefit policies I know of that are not strictly "couple" based (and many that are, like that at my own university!) require some sort of evidence of economic interdependence. There's a logic to such a requirement; it allows an employee to protect the well-being of someone with whom the employee has established a level of connection that warrants economic and emotional peace of mind. I see a true "plus one" policy as representing something different. It essentially values the work of each employee equally by giving each employee the opportunity to enroll one other adult for benefits. The Michigan plan is not a pure "plus one" policy because the employee must live with the other adult, but with no other requirement it allows coverage for a friend that would be unavailable under most other plans.

Labels: beyond marriage, domestic partnership, economics, Michigan, Nancy Polikoff, reciprocal beneficiaries

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On March 25-26, 2011, I will be hosting a conference at American University Washington College of Law, co-sponsored by the National Center for Lesbian Rights and by our Journal of Gender, Social Policy, and the Law. The conference is entitled: "The 'New Illegitimacy': Revisiting Why Parentage Should Not Depend on Marriage."

The impetus for this conference -- actually the last straw -- was the ruling from the New York Court of Appeals last spring that a nonbiological mother was not a child's parent based on her role in her child's life but based solely on the fact that she was in a civil union with the child's mother when the child was born. I blogged about the case at length here. Massachusetts also determines when a child born to a lesbian couple has two parents based on whether the couple is married.

I sent the following call for papers to numerous family law academics:

It is an axiom of family law: children should not suffer as a result of being born to unmarried parents. This bedrock principle developed in the second half of the 20th century to sweep away the disabilities that plagued “illegitimate” children – those born outside of marriage – for centuries. Beginning in 1968, the US Supreme Court held in a series of cases that marriage of a child’s parents could not be the factor determining which children were eligible for, among other things, wrongful death recovery, worker’s compensation death benefits, and financial support and care by both parents.

Today, however, that principle is under attack. In some states, children born to lesbian couples find that their status depends upon whether their parents are married (or in a civil union). ...

Moreover, it is distressing that some support for same-sex marriage relies on the denigration of “illegitimate” children. Advocates often argue that denying same-sex couples with children the right to marry deprives those children of what those advocates allege is the security and stability offered by “legitimacy.” Arguing that same-sex couples must be allowed to marry to prevent the “illegitimacy” of their children flips on its head the modern understanding that neither law nor society should penalize children of unmarried parents. It may also make it more difficult to advocate recognition of parent-child relationships outside of marriage, including those formed when more than two adults plan for and raise a child together.

Labels: beyond marriage, children, de facto parenting, family structure, gay marriage, gay parenting, law, Marriage, more than two parents, Nancy Polikoff, single parenting

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...Still, even in a time of changing attitudes about who can be a parent, the legal and social definition of a family still has certain rules — a family can be run by a single mom or a single dad and, increasingly, by two moms or two dads, but it can’t have three parents, or four. For a long, long time — going back to when the English common law first started codifying such things — the law has set the maximum number of parents a child can have as two. Only two people, in other words, can enjoy the unique set of rights to determine a child’s life — and the unique set of responsibilities for the child’s welfare — that legal parenthood entails. That matches how most people think about parenthood: Two people, after all, are how many it usually takes to make a baby in the first place.

Now a few family-law scholars have begun to argue that there is nothing special about the number two — if three or four or five adults have a parental relationship with a child, the law should recognize them all as parents. Going beyond two, these scholars argue, would better reflect the dynamics of the modern family, and also protect the children in such families. It would ensure that, even in the event of a split or major disagreement between the adults in question, the children would not be deprived of the affection, care, and financial resources of any of the people they have grown up regarding as their mothers and fathers.

“The law needs to adapt to the reality of children’s lives, and if children are being raised by three parents, the law should not arbitrarily select two of them and say these are the legal parents, this other person is a stranger,” says Nancy Polikoff, a family-law professor at American University’s Washington College of Law.

In a few recent cases, courts seem to have agreed with the calls for multiple parents. But critics argue that tinkering with the definition of parenthood in this way threatens to dilute the sense of obligation that being a parent has always carried, and that increasing the number of legal parents only raises the likelihood that family disputes will arise and get messy and find their way into court. Not to mention that having judges routinely declare that Heather has two mommies and three daddies would represent a radical cultural shift, and one that, like gay marriage, many will find threatening.

Ultimately, the legal definition of parenthood is part of a broader philosophical question: What is a family? And what is it for? While some scholars have focused on expanding the number of parents, others argue that the law needs to do more to recognize the social context in which families exist, and the extent to which child care is actually performed by people who aren’t part of the nuclear family at all. ...

Today’s proponents of expanding the definition of parenthood argue that restricting the number of parents to two people also disadvantages children, at least those in certain nontraditional households. If a child grows up thinking of more than two people as parents, these lawyers and legal scholars argue, then the law should protect those relationships and the emotional connection and material support that come with them. Doing so may not be necessary as long as all of the parents get along and remain equally committed to the child — or children — but if the parents have a falling-out or if the custodial parents split up, then the people the law officially recognizes as parents hold all the cards, and can shut the others out of the child’s life.

In addition, in the eyes of the law, a child doesn’t have any claim on the financial resources of parental figures beyond the legally recognized two. The relationship is not unlike those of illegitimate children and their parents before 1968. With very few exceptions, it is today impossible for children to sue for child support, collect Social Security survivor benefits, or inherit by intestate succession from self-identified third or fourth parents, since the law doesn’t recognize the relationship.

To critics of the legal status quo, all of this means that, just as with illegitimacy laws, the courts are punishing children in the interest of preserving a traditional family structure, making their lives more uncertain by depriving them of emotional and financial support.

“I’m not saying all kids should have three [parents], or that two is good so why not three,” says Melanie Jacobs, a law professor at Michigan State University and author of a 2007 law review article entitled “Why Just Two?” “The law says someone is either a parent or a legal stranger, and in some cases that’s threatening to just take this person who has been a part of the child’s life out of the child’s life.”

Jacobs points to two recent decisions in particular that suggest how she would like courts to define parenthood in such families. In January 2007, the Ontario Court of Appeals granted full parental status to both members of a lesbian couple as well as their sperm donor, ruling that it was contrary to the child’s best interests to not recognize all three. In April of 2007, the Pennsylvania Superior Court was faced with a custody decision involving a child’s biological mother and her same-sex partner, who had split up, and a donor who had been a significant presence in the child’s life. The court ruled that all three should have custodial rights and that all three were responsible for child support. Additionally, in July of this year, the attorney general’s office in British Columbia proposed allowing for more than two parents in cases of sperm and egg donation.

Recognizing multiple fathers or multiple mothers, however, doesn’t necessarily mean that they all have the same rights. In the Pennsylvania case, the court did not decide that all three parents had equal custody or were responsible for the same amount of child support. Jacobs in particular has argued that expanding the number of legal parents a child has requires that courts begin to allow for degrees of legal parenthood, what she calls a scheme of “relative rights.” Whereas today the law tends to see someone as either a parent or a nonparent, she argues that it should instead recognize gradations. For example, she argues, a known sperm donor should perhaps have certain parental rights and responsibilities — visitation and the obligation to pay some child support — but not the right to demand custody.

For critics, “disaggregating” the rights and responsibilities of parenthood, as Jacobs suggests, exposes a larger problem with the idea of expanding beyond two in the first place. Traditional legal definitions of parenthood, though they may not exactly correspond with every family’s day-to-day reality, do lay out a set of hard and fast, inescapable obligations. If courts begin to experiment and innovate with what being a parent means, that may create uncertainty, and even a sense that parental obligations to children may be more negotiable than they once were.

Labels: child care, children, culture, de facto parenting, donor conception, Elizabeth Marquardt, family structure, June Carbone, more than two parents, Nancy Polikoff, parenting, remarriage

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The Supreme Court of Washington ruled last week that a stepparent cannot be a de facto parent. Five years ago, that court acknowledged, in In re L.B., that a nonbiological mother in a lesbian couple was the de facto parent of the child she had raised from birth, for six years, with the biological mother. In last week's case, In re M.F., a six-member majority ruled that a court must decide whether the de facto parentage doctrine applies before applying the factors used to determine if someone is a de facto parent. The court found that it could not apply to a step-parent, at least not when the child already has two legal parents.

In the case, M.F. was born to married parents, Patricia Reiman and Edward Frazier, who separated shortly thereafter and then divorced. The mom had custody and the dad had visitation rights. The mom remarried when M.F. was two years old, and that marriage produced two sons. When that marriage dissolved, the mom and dad, John Corbin, split the time with their two children, but M.F. was usually with the boys when they stayed at their father's. Three years later Corbin petitioned to change the parenting plan with the boys, and the mom stopped sending M.F. when the boys went to their dad's house. ...

But the majority's ruling is really predicated on a notion that is fundamentally flawed -- the idea that a child cannot have more than two parents. The three dissenting judges agreed that the majority was too fixated on the fact that the child already had two parents. That should not be test. It's time for law to recognize the fact of children's lives...that many have more than two functional parents. ...

And the dividing line among stepparents shouldn't depend on whether a child already has two parents. By drawing that line, the Washington Supreme Court is treating a child with one parent (usually a mother) as having less of a family that a child with two parents. Wrong, wrong, wrong. A single mother may have a new partner who should not be considered a de facto parent. A divorced mother may have a new partner who should be considered a de facto parent. This is a court that has stepped up to the plate in several cases to recognize functional families -- both couples and parents. Not here. Here they were blinded by the number two.

Labels: de facto parenting, family structure, Nancy Polikoff, stepparents, Washington (state)

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As a long-time champion of the National Gay and Lesbian Task Force, it pains me to have to criticize that organization, as well as the Los Angeles Gay and Lesbian Center, for its just-unveiled Rock for Equality action. The premise of the action is simple -- and misguided: that same-sex couples, who, even if they marry, cannot have their marriages recognized under federal law, are discriminated against in social security benefits. ...

This is a hard issue to understand and to explain. I'm going to try. One type of married couple gets this kind of windfall under Social Security -- it's the type of family that Congress had in mind in 1939, when it created the system and only 15% of married women earned their own income. When one spouse has earned all or the vast majority of the couple's income, the non-earner or low-earner spouse gets a retirement benefit equal to half her spouse's, even if she never paid into Social Security; and if her spouse dies first, she will then receive the amount of money he was receiving. Example: If his lifetime earnings entitle him to $1,800/month in benefits, she will receive $900 while he is alive and $1,800 once he dies. (So the household has $2,700/mo. while he is alive and $1,800 when he dies).

When a same-sex couple resembles this couple's earning pattern, that couple is, indeed, disadvantaged by being considered unmarried, when the couple is actually married in a state that allows it.

But same-sex couples with two earners, whose lifetime earnings are pretty close to each other(I'm pretty sure my friend and her partner fall into this category), will gain nothing by being considered married. Instead, they will find themselves, like equal-earning heterosexual couples (including most African-American married couples), paying more into the system and getting less out. Let's say each partner is entitled to $1,350/mo. based on her own earnings. Sure, if they are married, each can qualify for a spousal benefit. But that benefit is instead of, not on top of, what each qualifies for on her own. So the spousal benefit is only $675/mo. instead of $1,350, which, of course, no one would choose. So that household also gets $2,700/mo. while both are alive. But when the first spouse dies, the survivor simply keeps her own benefit -- $1,350. The surviving spouse sees a 50% cut in benefits to the household, compared to the 33% cut experienced by the surviving stay-at-home spouse whose deceased spouse earned all the family's income. ...

Scholars and advocates unconnected to the gay rights movement have been pointing out for years how unfair this system is...to equal earning married couples and to single parents, whose lifetime earnings suffer because of their childcare responsibilities and who have no income-earning spouse confering a spousal benefit. Research by the Institute for Women's Policy Research [pdf] and law professor Dorothy Brown [pdf] demonstrates that black couples are disadvantaged by the current Social Security system.

Labels: economics, family policy, gay couples, Marriage, Nancy Polikoff, race

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...Anyway, I was surprised to see the issue come up immediately in this trial. Judge Walker interrupted Olson's opening statement to ask (among other things) if California could get out of the marriage business altogether and just provide domestic partnership for all couples. He pressed the point through additional questions, even though Olson said the state would never "get out of the marriage business."

Subsequently, according to Prop8trialtracker.com, (scroll down to 3:20 pm update), the judge asked one of the plaintiffs, Sandy Stier,

"If the state were to get out of the business of using the term marriage, but created another name for it for all people, domestic union or whatever, would not that put you on the same plane as all others?

Sandy: I believe so. Yes. If we had the same access, I’d feel equal.

Judge: Even though the term marriage is not used?

Sandy: Yes, because if it’s not a legal status sanctioned by the state or government, I'd not have to worry about access to it because no one else would either."

Note that this is not the common answer from proponents of marriage equality. Yet it is precisely the glorification of marriage that I find so disturbing about same-sex marriage advocacy. On the same day of testimony, Sandy's partner, Kris Perry, (scroll to 2:46 pm)testified that:

"I don’t have access to the word to describe our relationship. Marriage appears to be really important to people. I’d like to use the word, too. You chose that person over everyone else. You feel that it should stick. You want the public support and inclusion that comes with marriage. If we got married, it would be an enormous relief to our straight friends who feel sorry for us. I can’t stand it. They have a word. They belong to this institution. Sandy and I went to a school football game. I realized they were all married and we’re not."

And in what I find the most disturbing portrayal of marriage, plaintiff Jeff Zarrillo said (scroll to 11;34 am):

"We have not had children because Paul and I believe that it’s an important step for us to be married before we have children. It would make it easier for us and our children to explain our relationship. It would afford different protections for our child. If we enter into that institution, we would want all of the protections so nothing could eradicate that nuclear family."

Of course this is completely in keeping with the argument that children do best with married parents, but that's an argument with its origin in opposition to same-sex marriage (Just look at the Hawaii litigation, for example.) Back when marriage equality was not a prominent item on the gay rights agenda, LGBT rights advocates opposed that reasoning, arguing that children do just as well with a gay or lesbian parent or with a same-sex couple. Now in furtherance of marriage equality, advocates assert that children with same-sex parents will be better off if those parents are married. Let me tear my hair out now. The tangible benefits of having two parents are not supposed to turn on whether those parents are married. I've written about this at length.

Labels: beyond marriage, gay marriage, Marriage, Nancy Polikoff

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I failed to note in my last post an unusual and important aspect of Delaware's new statute creating parentage in a person who qualifies as a "de facto" parent:
This is a statute that explicitly authorizes three parents (or more) for a child.

The statutory interpretation is easy. A "de facto" parent must satisfy the criteria (check my last post for these). The first criterion is "has had the support and consent of the child's parent or parents..." So a child can already have two parents. Both those parents must consent to and foster a parental relationship between the child and another person. That person then satisfies the remaining statutory criteria, and, voila, the child has three legal parents.

The entire subject of more-than-two parents is severely untheorized, and the law in this area is profoundly underdeveloped. When you consider the number of children whose parents divorce and then couple with other partners, there are many, many children with more than two parental figures. The standard course, however, is that for a step-parent to become a legal parent that person must adopt the child and for that to happen the noncustodial parent must consent to termination of his/her parental rights.

There are a handful of court decisions allocating the rights and responsibilities of parentage among more than two parents, including a few states in which trial courts have granted third parent adoption decrees to the partner of the biological mother when the semen donor is also a functional (and legal) parent. But those are the exception.

When I was in Australia earlier this year, I spent some time with a family of four parents...the bio mom, her partner, the semen donor/bio dad, and his partner. The women are the primary parents. The men are secondary parents. The child is seven years old, and the relationships have been stable throughout his life. Australia's parentage reforms of the past year do not allow for even three parents, let alone four. ...

Of course the Delaware statute isn't just for same-sex couples and our families. And since there are way more heterosexual families, I wouldn't be surprised if the first three-legal-parents family in Delaware is a divorced couple and a step-parent -- all by consent. After the stepparent has a bonded parental relationship with the child for a sufficient period of time, and with the agreement of both the child's legal parents, a court should issue a parentage order to the step-parent. It does happen that post-divorce family configurations actually work well enough for such an arrangement to be appropriate --- to be the matching of legal parentage to all the child's emotional parental relationships.

Labels: beyond marriage, de facto parenting, Delaware, donor conception, Nancy Polikoff

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