Back In the Saddle! Flexible Family Forms and How the Law Should Treat Them

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.



5 responses to “Back In the Saddle! Flexible Family Forms and How the Law Should Treat Them

  1. In the situation you are describing, all of the people are going to play an important role in the child’s life (including the half sister/sister). I didn’t read the article, but from what you are saying these folks have an amicable agreement that centers on the child’s best interest and right to have a relationship with everyone involved.

    That leaves me to wonder — does everything need to be regulated by law? If so, by default or only when issues arise? Issues such as custody or the death of one of the legal/genetic parents? In these issues, does the law (in the US) generally take the child’s existing relationships into account already?

  2. would the step-parents legal status change if they were legally married or not? in most locales I think not.

  3. I think step family is great. I think step family gets a bad rap Julie. Did you know that there are legal rights from being step family? Like you ARE treated as legal relatives for all rights and benefits conferred by the government? For instance an adult can take in their ailing step sibling and qualify for family leave act time off where two blood siblings cannot do the same if their birth record does not show them as having at least one parent in common. So if they are the child of a gamete donor they have no right to family leave act time off or if one of them got their identity stolen as part of an adoption proceeding they don’t qualify for family leave act time off or if the parent they have in common is absent from one or both of their birth records or if someone else is named in place of the parent they have in common on one or both birth records they have no right to family leave time off. Also people are allowed time off work to attend their step family’s funerals, not so with blood siblings whose birth records are as stated above, not reflective of their actual parentage. Another thing step family can do is claim one another as relative dependents on their taxes. Like you could be taking care of your step niece and claim them on your taxes as a relative dependent AND if you die while they are dependent upon you they will get social security death benefits from you without loosing their right to the death benefits of their actual parents. This is similarly true for minors if their step parent dies because their parent’s income was combined with the income of their spouse the step parent – if the step parent dies ALL of their children and step children would qualify for death benefits while they are minors. Again the step child would receive the death benefits without loosing their right to the death benefits of their actual parent. This is true even when the actual parent is providing support and sharing equal time raising their child as they are supposed to because the child did also depend upon the step parent for support. Did you also know that step relatives are entitled to copies of one another’s birth marriage and death certificates to the same extent that they are entitled to their own relatives vital records? This is not true for blood relatives whose family has been separated and their true parentage is not recorded on their birth records. Having true parentage recorded on their birth records and not being given a new identity upon adoption allows an entire family to remain legally recognized with all their rights to information, whole and intact. Step families are great.
    If a person’s parents cannot hack it as a couple and pair up with other people and marry those other people the child actually GAINS from the marriage of their parents to other people because their incomes theoretically improve. It can cut both ways though if the step parent has other children he or she is supporting their amount of support might be reduced by the existence of the step child especially if their spouse was unemployed. This is true of anyone having their own additional children or taking on a spouse and spouse’s children…they walk into it eyes wide open aware of the net loss or gain to those who will be dependent upon them directly and indirectly. But the most important thing is that the marriage and its financial benefits and obligations are the choice of the adults in the marriage.

    If one parent dies and the other remains alive, of course custody of the child should fall exclusively to the parent who remains alive and if there is good legal reason to prevent the other parent from taking full custody of their child the step parent could raise those objections in court and make an appeal for custody based on the parent being incarcerated for abuse or something.

    What I don’t know is if death of a spouse has the same effect as divorce in terms of ending the legal rights that step relatives have to one another’s information. I’d imagine not. I do think that death of a spouse extinguishes the right to support of the spouse and by virtue of that the child would no longer be entitled to support of the dead parent except through the social security or military death benefits. Would the step parent continue to have a financial obligation to support the children of their spouse? That gets pretty detailed but I think it warrants thorough investigation and correction of anything that is unfair. The important thing is that the step parent NOT gain a permanent connection to the child that outlasts the marriage at least in terms of divorce. The involvement of the step parent should be always at the discretion of the actual parent.

    I think it is fine to recognize the real daily lives of people their relatives and step relatives because it is very true that a step parent can be emotionally more bonded to the child than the actual parent. But that is not to say that they should prevent the actual parent from doing his or her job. In fact they should encourage the parent to do their job and even fight for the child’s right to have everything they deserve from both parents and hope that the child would have good positive relationships with both parents.

    It may seem like it is not in a child’s best interests to have to move in with their previously estranged parent because one parent died. It may seem like it is in the child’s best interests to remain with their step parent, but that is not thinking about what is best for children generally as you often put it. What is best for children generally is to underscore their right to parental support and their right to good care from both parents. Any attempt to prevent a parent from doing what they are supposed to do for their child is bad for children generally and any attempt to provide the child with what they are owed by their parent is good for children generally.

    Would it be your assertion that some children don’t deserve the full care and support of both parents and under what circumstances wouldn’t a child be deserving of all they are due? Would they not deserve their parent’s care and support if someone else wanted to provide it? Had been providing care and support as well? Does the receipt of care and support from a step parent or parent’s partner necessarily negate the right to receive support and care owed by the absent parent? Should it? I think any play to prevent a parent from performing their parental duties should be supported by actual criminal convictions for things that are the basis for accusations of unfitness. If a child has a long standing relationship with a step parent and the parent dies leaving custody to a previously non-custodial parent I think the child’s right to go live with their parent should not be trampled upon. I also think the step parent might have the right to continued guardianship of their step child if they could arrive at a reasonable agreement with the non-custodial parent in court or if right to be first in line to adopt or be a guardian if the non-custodial parent were convicted of charges that make it unsafe for the child to live with them. I don’t think the child’s right to financial support from the one parent that remains alive should be extinguished under any circumstances and I do think any continued contact or support by the step parent should be at the step parents discretion.

  4. You should also have to actually get married to be considered step family which is why children of gays and lesbians would have their financial positions greatly improved if their parents were allowed to marry. Not that it would make the spouse a parent, but rather a legal step parent. Rights would flow from that which are very helpful. What should not happen is marital presumption in either straight or gay marriage because then the child has to loose a parent and parent’s family in order to gain rights within their step family that they would have had anyway so long as the marriage remained intact

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