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Today, fewer than 50 percent of American families are married. Half of the Unites States is in a non-traditional, non-nuclear family. What do these families look like? You might know a few.

Howard had always envisioned becoming a father. He came from a big family.

Callie said she’d have kids…eventually. At least she promised she would.

Mallory, much to her mother’s delight, decided she did after all want to have children. She was looking into having a child on her own. She was starting to get into the details.

Howard and Callie Sinclair had their daughter Abbey in 2009. They aren’t using their real names, because of the unique situation they later found themselves in. Callie is a hydrologist; Howard works in Web development. They were young when they got married. Howard waxes romantic, Callie is a pragmatist, but they both agree that they felt they belonged together.

They were both surprised when they met Mallory. She’s a geochemist. And, they say, it was magic all over again. They never thought they would fall in love again, but they did. Mallory joined the family when Abbey was two years old, which was two years ago.

The set-up they’ve chosen for their relationship is typically called a “polyamorous triad.” Polyamory is an approach to relationships that accepts the notion that someone can love more than one person at once.

“When you love and trust people, a family is an easy thing to organize,” Howard says. “It’s the same for two people as it is for three people, anyone who’s in a really functional marriage understands. You love and respect and trust each other. It’s straightforward in that sense.”

But while things are straightforward within the home, outside of it, things aren’t so easy.

“The reactions from our immediate families were…in my case, the reactions were quite negative,” Callie says. “The reaction in Howard’s case the reaction was also quite negative.”

Sometimes, the negative reactions sometimes have legal implications. One of the most public cases was in 1998. April Divilbiss and her two partners came out as polyamorous on an MTV documentary show. Soon after, Divilbiss received an emergency protective custody order telling her that daughter was now in the custody of her paternal grandparents.

The charge the grandparents brought was against the family was “moral degradation.” There were no other allegations of child abuse or anything of the like. Polyamorous people often have their rights as parents challenged, the same way many same sex couples do.

Diana Adams is an attorney and mediator in New York City. She has built her law practice representing what she calls non-traditional families: polyamorous triads; couples, straight and gay, who might want to choose not to get married; people who want to co-parenting who aren’t in a romantic relationship, such as two single mothers or sisters who decide that they want to co-parent children and share a household.

The problem that these families face, Adams says, is that the only way to be recognized as a family unit is to be married. To get married, in most states, you have to be a man and a woman unrelated by blood, of legal age, and embarking on a sexual relationship. You pay about 50 dollars for a marriage license, and there you have it: in the eyes of the law, you are considered to be a unit.

When you don’t meet these criteria, but you’re trying to live as a unit, raise kids, or share a household, the legal system doesn’t have a lot to offer you in terms of short cuts, Adams says.

“I think we would benefit from other options besides marriage. It would be a useful thing for our government to get out of the business of deciding whether a sexual relationship merits being in a marriage that gives you tax benefits. Marriage should be something that we can do in your church your mosque your hippie festival,” she says.

Adams is rooting for more general legal recognition of alternative families structures: Breaking away from the two-people-in-love-forever model and generating more options.

Changing legislation is a lifetime goal for Adams. In the meantime, she is working in the legal system as it currently exists, figuring out creative solutions for those navigating the uncharted terrain of family law for families that aren’t married. People like the polyamorous triad, the Sinclairs.

Sharing finances, for one, are a big challenge for Callie, Mallory and Howard. They want to be able to do what other families do: pay taxes together, share a bank account, share health insurance, life insurance, property. Howard and Callie are already doing that, but the legal system is not set up for three people to do that. So as it stands now, Mallory is always left out.

Mallory describes her experience trying to register a life insurance policy over the phone with a customer service representative:

“He asked, ‘Who’s your first beneficiary?’ I listed Howard’s name. He asked, ‘What’s your relationship?’ I said, ‘partner.’ He says, ‘We usually reserve that for gay couples.’ I say, ‘just wait.’” The three laugh.

But much more serious, for the Sinclairs, are issues of child custody and guardianship.

“Since we’ve been together, Abbey has had two accidents that took her to the ER,” Mallory says. “The idea of being shut out of the room… There’s no way we can put anything in place that would let me come into the room or be involved in her health care,” she says with tears in her eyes.

The Sinclairs realized they needed a lawyer. Diana Adams was one of two lawyers listed on a polyamorous-friendly legal help webpage. They saw the other lawyer first because he lived closer. They say he was terrible.

“His mentality about it seemed to be trying to protect ourselves from each other, rather than building anything to help us overcome the challenges we were facing,” Howard says. “He made us feel like we were doing something wrong. It was just ridiculous stuff. We were like, ‘Really? You sound like you’re from the 40s!”

They were relieved when they found Adams.

First, she started them out writing wills and health care proxy forms, so that in the event that one of the triad gets sick or worse, there could be something legally binding saying that the chosen family, not their parents or relatives, would make decisions about their health and in the worst case scenario, inherit property.

Next Adams took on the issue of sharing finance. In this department, Adams tells the Sinclairs to abandon family law entirely. She is helping them form a corporation.

“What’s a corporation? It’s a group of people who’ve decided to live together and work together and forge their way together. What’s a marriage? In most senses it’s a corporation at the legal level,” Howard explains.

Diana Adams elaborates: “They can buy property. They can pay taxes together. They can share common bank accounts. They can buy common health insurance. It’s a way to get around the government evaluating whether their relationship passes muster. They’re not trying to fit into a Judeo-Christian marriage model. They’re just trying to fit into an existing legal structure that allows people to pool finances.”

While corporations are in many ways legally recognized as “people” in the U.S., forming a corporation won’t help the Sinclairs with their parental status under family law.

Howard, Callie and Mallory want Mallory to be recognized as one of Abbey’s parents, so she, the non-biological parent, can have the same rights to visitation, custody and care as the biological parents, regardless of whether or not they stay together. Adams drafted a co-parenting agreement, which is a document that acknowledges that they all agree to these terms.

Still, Adams is skeptical about whether it will hold up in court.

“It would be a radical thing for the court to do, but it has happened. That’s up to the proclivities of that one family court judge and whatever county he’s in,” she says.
“All of these decisions about parenting are based on the very subjective standard: ‘the best interest of the child.’

“What does that mean? To a judge in New York City that could mean living on a lesbian commune. I’ve had cases like that. In upstate new York, that could mean that’s inappropriate for a child to live in a home where the parents aren’t married.”

Adams says the best the Sinclairs can hope for, in the event they ever end up in family court, is a sympathetic judge. In her experience, though, nontraditional families try to avoid court if possible. Which is why, Adams says, the legal system doesn’t change. It’s a vicious cycle.

“The legal system, and especially the legislative system, is often 20 years behind culture in terms of change with families,” she says.

Legal precedent still favors the nuclear family as the best place for children to grow up. Adams says that decades of social science research have proven that what’s most important for child rearing is stability.

“A proxy for stability has been marriage. Often times, these studies will jump to the conclusion that because instability is damaging for children that marriage is the answer. When in actuality, stability is the answer,” Adams says. “So I help these families where they are now, with the existing structure. [There are] lots of ways they can still protect their rights even while the law is catching up.”

And, she believes, “Doing that kind of work helps the law catch up.”

For further reading, check out Nancy Polikoff’s work on family law http://www.beyondstraightandgaymarriage.com/

Diana Adams’ law practice

 

 

 

 

 

Life of the Law © 2018