It’s been a weekend of protests for the LGBT community. The New York Times, among other places covered them, as did most LGBT news channels. Pick your favorite; I won’t list them all here.
Instead, I’m going to highlight the interview that actor and lesbian mom Cynthia Nixon did on Friday with Joy Behar, who guest-hosted Larry King Live. In it, Nixon talks candidly about Prop 8 and LGBT rights. I have to question, however, one of her legal reasons for wanting to marry her partner, Christine Marinoni. Nixon has two children from a previous, opposite-sex relationship. She and the children’s father are therefore the legal parents. Nixon said that if she got hit by a truck, Marinoni would have no legal rights to the children, even though she (Marinoni) is currently their stay-at-home mom. Nixon claimed that if she and Marinoni were married, Marinoni would have legal rights as their stepparent.
Fact is, as I understand it, even for a married, opposite-sex couple, the stepparent would have no legal rights unless the non-custodial biological parent had given up his rights and allowed the stepparent to adopt the children. Nixon and her ex could do this even now, I believe—although it seems they have a good relationship and Nixon doesn’t feel any need to revoke his rights. Would Nixon and Marinoni’s marriage, without Marinoni adopting the children, give Marinoni any legal standing in relation to the children if Nixon died, though, making her and the ex the legal parents? I think not, but I’m not a lawyer. Anyone from the audience? Is this a state-by-state matter?
If I’m correct here, this should be a warning for us not to put all our eggs in the marriage basket, as Nancy Polikoff has said before. As important as marriage rights are, there are a host of additional legal issues that arise when it comes to parenting, and which shouldn’t necessarily be tied to marriage. (Note that Nixon and her male ex never married.)
[Update: Nancy Polikoff, an expert in LGBT family law, confirms my analysis in her comment below.]
Curious indeed… As a step-parent I understand this as you do. There are, as you point out, a veritable tangle of legal matters. Which is why the topic of marriage alone can’t be the end all/be all, but must be the cornerstone of clarification and of justice.
You’re right, Dana. And I find this very interesting…A friend of mine in Massachusetts, who is very active in LGBT issues, married her partner who is the bio mom of the children they are raising. When we talked, she seemed to think this gave her some legal status with the children. It doesn’t…at least not much. When a custodial parent dies, the non-custodial parent gets the children. Some states will allow a third party to make an argument that the children should stay with them, but it’s an uphill climb. Also, pardon me for not knowing where Cynthia Nixon lives, but if she lives in California and is in a registered domestic partnership, then Marinoni is already the stepparent of her children. Oh..okay..I just listened to the interview and it turns out she lives in New York, but she’s not going to Connecticut or Massachusetts to marry because she wants to wait til it comes to her home. Well, New York is the one state that is recognizing out-of-state same-sex marriages in many instances…so what exactly is she waiting for? But, again, it won’t be her partner gets the kids if she dies…
Even if a child is born to a marriage as a result of AI in Mass and both names are on the birth certificate, we were advised at the Fenway’s AI clinic to go through either a second parent adoption or court finding of parenthood.
Yes, that’s the general wisdom in LGBT legal circles, Kathygnome. As I understand it (and I’m not a lawyer), if the legal basis for the parent-child relationship has come from the parents’ relationship, as with a non-bio mom on a child’s birth cert, states that don’t recognize the parents’ relationship might not recognize the nonbio-child relationship either. An adoption or court order is the only way to guarantee the parent-child relationship will be protected everywhere.
Good point, though, and one that bears repeating, because it’s not obvious.
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