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Excerpted From: Catherine P. Sakimura, Beyond the Myth of Affluence: The Intersection of LGBTQ Family Law and Poverty, 33 Journal of the American Academy of Matrimonial Lawyers 137 (2020) (69 Footnotes) (Full Document)

CatherinePSakimuraIn the past few decades, the dominant media narratives about LGBTQ people have focused on white middle-class couples and families. Likewise, statutes protecting LGBTQ parents and their children have often focused on the needs of more affluent parents, and the child welfare system disproportionately removes children from LGBTQ parents of color. In part, the stories shared in the media have helped combat discrimination against LGBTQ adoptive parents and achieve marriage equality, but they have also erased the real experiences of the majority of LGBTQ families. Contrary to persistent myths, most LGBTQ people are not white and affluent. Indeed, LGBTQ people, especially parents, disproportionately live in poverty, and LGBTQ people of color are more likely to be raising children.

Accordingly, the future of LGBTQ family law must focus on the specific needs of low-income LGBTQ families. To adequately address their legal needs, it is important to understand their lived experiences. The needs of these families differ in important ways from the needs of more affluent LGBTQ families as well as from those of low-income families in general. Same-sex couples and transgender people are more likely to experience poverty than different-sex married couples, and same-sex couples of color and transgender people of color experience significantly higher levels of poverty. In particular, black children with samesex male parents experience the highest levels of poverty among all types of households. Same-sex couples of color are more likely to be raising children than white same-sex couples.

Many LGBTQ families experience not only the impacts of poverty and racism but also face discrimination based on sexual orientation and gender in their everyday lives. One particularly poignant way these families continue to experience discrimination relates to the unnecessary separation of LGBTQ parents and their children. This happens because of inadequate legal protections or discrimination within the family court and child welfare systems. This separation often leads to devasting effects on the long-term health of the children in these families.

Over the last three decades, many states have banned discrimination against LGBTQ parents in custody proceedings, protected nonbiological parents functioning as parents, and established broader laws--statutes and case law-- addressing children born through assisted reproduction and surrogacy. However, many low-income LGBTQ parents are still left out of these protections. For example, many state statutes addressing children conceived through assisted reproduction only provide protections for more expensive types of assisted reproduction, leaving families who conceive through more affordable methods unrecognized by the law and vulnerable to separation. And even in states that do have broader protections, legal recognition requires costly and complex legal actions out of reach for low-income, unrepresented parents. Additionally, transgender parents and children in particular still experience explicit discrimination in child custody, guardianship, and child welfare proceedings, and this result is more likely for low-income, unrepresented parents. Finally, the child welfare system does not prioritize keeping families together and continues to unnecessarily separate parents and children who are low-income, LGBTQ, native, people of color, and people with disabilities.

An important purpose of contemporary child custody statutes is to ensure meaningful and continuing contact between children and parents. Years of social science research has confirmed that protecting a child's attachment bonds to their primary caregivers is vital to their healthy development, overall well-being, and ability to grow into a healthy, autonomous adult. When those attachment relationships are severed, a child can experience severe, lasting emotional and psychological harm. Decades of research also confirms that parental attachment relationships are just as important for children with LGBTQ parents, regardless of biological or legal ties. Despite this research, family law and the child welfare system continue to separate LGBTQ parents and their children, and this burden falls most heavily on low-income families and families of color.

This article will cover family law and child welfare issues faced by low-income LGBTQ parents and families with LGBTQ children. Section I discusses the need to provide meaningful legal rights and remedies for low-income, nonbiological, LGBTQ parents. Section II addresses the discrimination and challenges faced by LGBTQ parents and parents of LGBTQ children in custody and guardianship proceedings. Section III highlights the failures of the child welfare system and the disproportionate impact on LGBTQ families of color. Each section addresses potential policy and legislative changes that can be sought to address the issues faced by low-income LGBTQ families. Finally, the article concludes with calls to action for advocates in the private and public sectors.

[. . .]

Despite the unique legal needs of low-income LGBTQ families, few services and programs focus on these families. In 2006, I began the Family Protection Project at the National Center for Lesbian Rights, which focused on improving legal services for low-income LGBTQ parents and their children with an emphasis on serving families of color. At the time, there were only a handful of programs focused on providing local services to low-income LGBTQ people in the country. Today, more LGBTQ organizations provide direct legal services, many legal aid and legal services organizations have LGBTQ projects, and some LGBTQ community centers operate monthly or weekly clinics with law schools or legal aid organizations, but the majority of LGBTQ low-income people still lack access to legal services that are LGBTQ-competent.

Low-income LGBTQ families need not only access to free legal services that are LGBTQ-competent but also advocates who focus on changing discriminatory laws. LGBTQ legal advocacy organizations have begun to focus more on the needs of LGBTQ people who experience poverty, but there is still little focus on enacting laws that specifically serve the needs of low-income LGBTQ families. These families' needs should be a priority. Private attorneys providing pro bono services and legal aid attorneys can play a role as well in shaping the future for these families. Individual attorneys can reach out to LGBTQ legal organizations like the National Center for Lesbian Rights for technical assistance in cases involving issues related to sexual orientation or gender identity, and attorneys who have had such cases can advocate with their legislators to address the legal needs of these families.

The need to address the issues low-income LGBTQ families face has never been greater. Just as for all families, existing challenges have only been exacerbated by the COVID-19 pandemic. Postponing and canceling trials has put many children in limbo, often separated from one or more parents. Restrictions on visitation and in-person visitation have delayed, impeded, or prevented reunification of separated parents or children.

Additionally, even before the pandemic, in my experience, LGBTQ nonbiological parents tended to be separated from their children for significant periods of time in custody disputes and child welfare proceedings, and many are never reunited. Courts may be reluctant to order even temporary visitation pending a parentage determination, and cases that present complex or novel questions of law simply take longer. Unrepresented parents may not even know that they can seek a determination of parentage. Nonbiological parents whose children are in child welfare proceedings may not even have a right to participate in the proceedings or an opportunity to attempt to prove parentage. Court delays caused by the pandemic worsen these existing problems.

Both nonprofit advocacy organizations and individual attorneys have a role to play in shaping the future of LGBTQ family law for low-income families. As the law continues to adapt to serve all families, it is vital that the specific needs of low-income LGBTQ families be addressed because all children deserve not only safety and security but also the opportunity to maintain their existing family relationships whenever possible.

Family Law Director, National Center for Lesbian Rights.

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