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.

EDGE: How has child custody law been affected by changes in marriage equality legislation?

HOFFMAN: Marriage equality has had a bigger and more important impact on establishing parental rights than on custody determinations. States that have embraced LBGT families and enforced LGBT-friendly legislation do not allow sexual orientation or transgender identity to play a role in determining visitation rights in a custody battle.

In addition, many states recognize that parent-child relationships form outside of the traditional biological process, and have put into place laws that which recognize "psychological" or "de facto" parents.

Unfortunately, this is not the case in every state -- especially those that restrict establishment of parental status to persons who are biologically related to a child or who have adopted a child under that state’s adoption laws.

EDGE: If a non-biological parent wants to adopt their partner’s child, what are the first steps he or she needs to take?

HOFFMAN: Adoption laws vary from state to state. The first step would be to consult with a family law attorney in the family’s area of residence, who can explain that jurisdiction’s laws and procedures for a second parent adoption.

EDGE: Are there any statistics that explain whether it’s better for children to have one parent or two?

HOFFMAN: Most research studies show that children with two moms or two dads fare just as well as children with heterosexual parents. In fact, one comprehensive study of children raised by lesbian mothers or gay fathers concluded that children raised by same-sex parents did not differ from other children in terms of emotional functioning, sexual orientation, stigmatization, gender role behavior, behavioral adjustment, gender identity, learning and grade point averages. Where research differences have been found, they have sometimes favored same-sex parents.

EDGE: What are some stories and other cases in which you’ve seen drawn-out custody battles for LBGT couples?

HOFFMAN: In Miller v. Jenkins, a lesbian couple living in Vermont who entered into a civil union in 2000 decided to have a child together. Lisa Miller is the birth mother and Janet Jenkins is the non-biological mother. In 2002, they had a daughter, Isabella Miller-Jenkins. When the couple separated in 2003, Miller was granted primary residential time (sometimes called custody) with Jenkins being granted visitation. Miller then moved to Virginia with the child, which does not recognize civil unions, and attempted to deny Jenkins’ rights to visitation.

Miller availed herself of the Virginia Courts and the district court ordered that she was the sole legal parent. Jenkins appealed on the basis of the Parental Kidnapping Prevention Act and the prior existence of the Vermont family court order. The Supreme Court of Virginia sided with Jenkins and ordered in November 2006 that Jenkins be provided with visitation. Miller consistently failed to comply with visitation and in November 2009, the Vermont court ordered sole custody of Isabella to Jenkins.

Miller refused to comply with the order to produce Isabella. Instead, she fled the country. With the help of Mennonite missionaries she took the child to Nicaragua. Miller and Isabella are thought to be somewhere in Nicaragua, but their exact whereabouts are unknown.

Another one is re. Parentage of L.B. L.B. arose in the context of a long term same-sex partnership between two women who endeavored to bring a child into their relationship through artificial insemination. Page Britain and Sue Ellen Carvin raised L.B., who was the biological daughter of Britain, together for six years. At the time of L.B.’s birth, there was no avenue available for Carvin -- a person with no biological relationship to L.B. and no legally recognized relationship with L.B.’s mother -- to establish a legal relationship with L.B.

After their relationship ended, Britain limited Carvin’s access to L.B. In November of 2002, Carvin filed a petition to establish parentage of L.B. under Washington’s Uniform Parentage Act. Her petition was dismissed by a family court commissioner for lack of standing under the UPA, and because Washington’s UPA at that time did not recognize "psychological parents." Carvin, of course, appealed.

The Court ultimately concluded that because there was indeed no adequate remedy available to Carvin at law, equity and the best interests of L.B., did in fact permit Carvin to have her parental rights to L.B. adjudicated.

Quick Facts for Families

• 3.4 percent of adults identify as lesbian, gay, bisexual or transgender (LGBT) in the United States (Gallup report, October 2012)

• There are 650,000 same-sex couples in the United States (Williams Institute, February 2013)

• 114,100 same-sex couples are legally married in the United States (Williams Institute, February 2013)

• 108,600 same-sex couples in the U.S. are in civil unions or registered domestic partnerships (Williams Institute, February 2013)

Winnie McCroy is the Women on the EDGE Editor, HIV/Health Editor, and Assistant Entertainment Editor for EDGE Media Network, handling all women's news, HIV health stories and theater reviews throughout the U.S. She has contributed to other publications, including The Village Voice, Gay City News, Chelsea Now and The Advocate, and lives in Brooklyn, New York.


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