Okay–I’m past most of those milestones, back into the semester, and here I am. Ready (?) to go for a new academic year. So I pick up in a random place, dictated by this mornings paper.
Our local paper (The Seattle Times) has its own slender magazine. This morning it features this story about “the good divorce.” (If you can get to the pictures on-line there are some nice ones.)I know that there are all sorts of questions about whether any divorce can be good, but that’s not the direction I want to go here.
Instead, I want to look at the family that is at the heart of the story and use that think about how law interacts with social reality. (I am choosing to say “family” rather than “families” and that, no doubt, could be another point of discussion.)
Sebastian Wynn, now six-and-a-half, is at the center of this family. His mother is Kristin Little. His father is Stefan Wynn. They live in different households. Then there’s Tamra Nisly (his dad’s partner) and Keith Hill (his mom’s partner). And finally there’s Soren Rose Wynn, his infant half-sister. Soren is the daughter of Stefan and Tamra.
The connections to Sebastian in the above paragraph are all correct genetically. (Or at least, I hope they are. I do make mistakes so let me know if you think I’ve made one here.) That is to say Kristin and Stefan are Sebastian’s genetic parents and Soren is his genetic-half sister. From a genetic point of view, Tamra and Keith are totally unrelated to Sebastian.
But I suspect (though I do not know–because this isn’t the point of the story and so it isn’t discussed) that the social/psychological world Sebastian inhabits isn’t quite do cut-and-dried. In particular, I would guess that Tamra and Keith aren’t totally unrelated and that Soren may be (in a social sense) a sister rather than a half-sister.
Now what about law? I can take a guess at how the law sees this family. Kristin and Stefan are legal parents. Tamra and Keith are not. Indeed, they may not even be step-parents (legally speaking) because 1) it isn’t clear to me that the relationships with the parents are marriage and 2) I don’t know if unmarried partners are recognized as step-parents. (Just realizing that I should know this, but I don’t.) I think it is quite possible that in the eyes of the law, Tamra and Keith are legal strangers. Even if they are legal step-parents (a rather elusive category) their continued connections to Sebastian depend on their continued connections to the legal parents.
I wonder if this is as it should be. If Sebastian has significant social/psychological relationships with Tamra and Keith than perhaps we ought to have a way to protect those relationships. And protection often comes from some kind of legal recognition. So, for example, if something terrible happened to Kristin and/or Stefan, do the relationships with Tamra and Keith also vanish? Should they? It might be (remember, I do not claim to know) that Sebastian has a relationship to Keith such that if something happened to Kristin, Keith would be an important source of strength and support.
Now given what we can tell of this family from this article, it looks there’s every reason to hope for the best under whatever circumstances come along. These ar people who are willing to make substantial personal sacrifices to do what is right for Sebastian. So the point I want to make isn’t about these people, this family, but about the law more generally.
As currently constructed, family law draws sharp lines between those who are legal family and those who are not. It often uses simple tools to do so–genetics in some instances, marriage in other. There are good reasons for this–it is easy to use simple tools accurately. But the lives people actually live–the lives children actually live–are not simple and are often not constructed with such sharp dividing lines.
This leaves us with a choice–do we construct a legal system that favors the sharp, clear, simple rule or do we construct one that allows for the messiness of family life? (I was going to say “modern family life” but sometimes I wonder if modern family life is that much messier than whatever came before it.)
There are costs associated with having messy family law. It takes more time and effort to examine the messiness, and so costs more in terms of both time and money. It may be more subject to bias and variation judge to judge. Outcomes are less certain, so people cannot count on them. And I’m sure I could go on.
All those costs really have to be balanced against one principle benefit: The law will better account for the lived-reality of children’s lives. And for me, this is worth it.