Marriage and Parenthood: A Talk with Nancy Polikoff

(Originally published in Bay Windows (PDF link), July 24, 2008)

For many same-sex couples, one of the primary motivations for getting married is to gain legal protections for our children. Nancy Polikoff, professor of law at American University Washington College of Law, cautions us, however, that we should not tie parenthood and marriage too tightly. “For the last forty years,” she says, “the development of the law has been to equalize the status of children born to married and unmarried parents. . . . We were able to make enormous gains on behalf of same-sex parents and their children in that context, without marriage on the radar screen at all.”

While marriage should be an option for all, she believes, it should not be a requirement. Opposite-sex couples have their parental status protected whether or not they are married, she notes, and by and large their children turn out fine. Research has shown, too, that children of same-sex couples have also been doing well with unmarried parents. “That’s what we say in every custody case, that’s what we say every time somebody says we shouldn’t be able to adopt children.”

In Polikoff ’s Beyond (Straight and Gay) Marriage: Valuing All Families under the Law (Beacon, 2008), she further explores why marriage is not sufficient and should not be necessary to protect all families. She admits, however, that the book is “somewhat unusual” for her in that it focuses on couples and adult relationships and discusses parenting only as a subset of that.

She has spent most of her 30-year career, however, on issues specific to lesbian and gay parents and their children. In her last year of undergraduate work, 1972, she met the first person identified to her as a lesbian mother. The woman had just lost custody of her children after coming out and divorcing her husband. When Polikoff entered law school, her first law review article (published with Nan Hunter) was about lesbian mothers in custody cases. Her interest in the topic has never wavered, she says, although she has worked on other issues. Becoming a mother herself and watching many of her friends and colleagues doing the same has reinforced her commitment.

The courts, not the legislatures, are where we have achieved the most rights for same-sex parents, she observes, saying, “The whole body of law affecting lesbian mothers in custody cases, developing second-parent adoption, developing de facto parenthood . . . all of the ground we gained over decades in that area came out of courts because judges who hear family court matters often care about the well being of individual children and they’re not in a political hotspot.”

She also points to a “huge” recent decision by the Social Security Administration (SSA) in June that said a child could receive the disability benefits of his non-biological mother, who was in a Vermont civil union with his biological mother. As long as the state in which they lived recognized the parenthood, the SSA would, too, regardless of the Defense of Marriage Act.

Unfortunately, says Polikoff, that ruling won’t affect other federal benefits, because there is no one place that defines a parent-child relationship for all of federal law. A non-biological mother cannot claim her partner’s biological child for the earned income tax credit unless she does a second-parent adoption, for example, because the tax codes define “child” more narrowly.

The federal Family Medical Leave Act (FMLA) is one place that defines a parent-child relationship more broadly, based on whether someone is raising the child. Polikoff would like to see that definition used for all federal purposes, but knows of no movement to make that happen.

Some local jurisdictions are making progress in that direction, though. Washington, D.C. passed a law defining de facto parents last year, Polikoff says. On July 11, 2008, she herself submitted testimony to city hearings on further changes to its parentage laws that would expand recognition of non-biological parents.

She warns, however, as do most LGBT-rights groups, that even where there is recognition of marriage, civil union, or domestic partnerships, couples should not rely on this as the basis for a legal parent-child relationship when dealing with other jurisdictions, including the federal government. A second-parent adoption is the only way for a non-biological parent to secure her rights everywhere.

Even that may not go unchallenged. “The worst cases,” says Polikoff, “are where it’s the biological mother herself who’s trying to say that a state should not recognize a second-parent adoption that she participated in in another state,” in order to keep an ex-partner from having custody or visitation. She urges that people exert community pressure to stop such people from making these anti-gay arguments in court: “That is how we get these bad decisions that say a child only has one mother when in fact, she has two.”

Such actions have a personal dimension for Polikoff. She was her daughter’s only legal parent when she and her partner separated. “I’d like to think I’m a poster child for how to handle a split up in that context . . . in a way that continues and protects the child’s relationship with both parents. We actually did her other mother’s second-parent adoption years after we split up. . . . I’m sensitive to the feelings people have in those situations . . . but I believe that if you create a two-parent family, you should not under any circumstances act as though the child has only one parent. I didn’t, and I expect other people not to also.” If Polikoff continues her work, people may someday not even have that option.