Attorney Elizabeth Hoffman on The Evolving Definition of Family

by Winnie McCroy
EDGE Editor
Thursday May 15, 2014

The traditional nuclear family is becoming a thing of the past. Americans across the country are largely embracing the ever-evolving definition of family, but with this new territory comes some new questions to consider, particularly when it comes to what role biology plays in the definition of family, both culturally and legally.

A few recent Washington State Supreme Court cases have brought the concept of de facto parentage into the spotlight, in both cases giving non-biological parents full legal parental rights. Over the years the court system has broadened the definition of family, same-sex adoption and marriage.

Elizabeth Hoffman, a Seattle attorney at family law firm McKinley Irvin has experienced has extensive experience working with families to sort out a variety of complex custody issues and exploring the question of what role biology plays in the legal legitimacy of parent-child relationships. She shares her expertise with EDGE.

EDGE: Could you expand on what is meant by the word "family" both legally and culturally?

HOFFMAN: The legal definition of a family varies from state to state, but is typically defined by the legal relationship between spouses, and the legal/biological relationship between parents and children. Whether a family is considered a "legal" family will depend on the marriage, adoption, parentage and other domestic relations laws of a given state.

In a larger sense, family extends far beyond the ties of biological kinship. Culturally, a "family" can be any cohesive unit in which individuals rely on each other for mutual support, care and guidance. No matter the label, LGBT families face the same joys and hardships as families led by heterosexual couples: the desire to have children, take family vacations and at times, the desire to end their relationship.

EDGE: What are ways in which LGBT parents can establish a legal relationship with their child if they are not a biological parent?

HOFFMAN: LGBT couples wishing to have children face unique issues that their opposite-sex counterparts do not experience. Couples may adopt a child with no biological ties to them, or pursue surrogacy, which creates many legal issues. Because of the varying laws throughout the U.S., co-parent/ second parent adoption may be the best option for couples, as adoptions are recognized both nationally and internationally.

The patchwork of laws regarding marriage, adoption, parentage and surrogacy across the country creates unique challenges for LGBT couples who desire to raise a child together. For example, one partner may have to adopt a child as a single person in the child’s home state, if that state does not recognize same-sex marriage or permit LGBT couples to adopt children together.

The laws of surrogacy also vary widely across the country, and it may be more difficult for LGBT couples to become parents through surrogacy in states with very stringent surrogacy laws. Finally, in states that recognize marriage equality or provide for domestic partnerships, same-sex parents may be entitled to similar "presumptions of parentage" that are afforded to heterosexual couples.

EDGE: What are the states that do not allow joint adoption by same-sex parents?

HOFFMAN: Florida, Mississippi and Utah have laws that explicitly prohibit LGBT individuals and couples from adopting children. Although other states may not have explicit prohibitions against same-sex adoption, they may only allow married couples to adopt, which by extension excludes LGBT couples.

EDGE: How do custody laws regarding LGBT families hold up against state lines? If you’re an LGBT family, how do you protect your family during state-to-state travel or relocation? Are there important documents to keep on-hand?

HOFFMAN: The confusing legal patchwork of rights for same-sex couples varies from state to state, and the level to which each states recognizes same-sex relationships changes constantly. If a couple is thinking of relocating to a different state with their child, it is important to consider the possibility that the new state may not recognize their relationship with each other and with the child.

The unfortunate reality is that even legally married couples may encounter institutions that deny them certain rights and responsibilities. With this in mind, it is wise for same-sex couples to obtain legal Powers of Attorney, and keep the document handy for state-to-state travel and relocation.

• Married same-sex couples should keep a copy of their marriage license in the car in case of medical emergencies. More often than not, a marriage license and power of attorney must be presented at the hospital in order for one partner to visit the other, or to participate in their care.

• Same-sex couples who have had a child born to them should also keep a copy of the child’s birth certificate in the car, ensuring that both parents appear on the document. This will also make the visitation process easier at hospitals.

• Same-sex couples who are considered legal parents under their state’s parentage laws should also consider a formal adoption for the non-biological parent. Some states will only recognize a court order establishing parentage, and will disregard a birth certificate.


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