At a plenary session of this year's Lavender Law conference, attorneys Bill Singer (New Jersey) and Joyce Kauffman (Cambridge, MA) unveiled an aspirational document designed to safeguard the parental relationships formed in same-sex couple families. Protecting Families: Standards for LGBT Families aims to keep families out of court by honoring the child's relationship with parental figures even when the relationship of the adults has disintegrated. You can now read and download the entire document here.
The document urges advance planning through obtaining legal protections for parental relationships, but in some states this can't be done, and in any state there are lots of people who don't have the money or don't make the time to make this happen. The legal system is so foreign to many non-lawyers. Or I'm reminded of the New Jersey couple who several years ago had one child and intended to have another, after which they planned to do second-parent adoptions of both children; they were waiting because it would be less expensive to do one proceeding for both children than to do two separate proceedings. But before there ever was a second child the nonbiological mother died, and the lack of a legal parental relationship meant that the child lost out on years of social security child benefits. It's precisely for situations like that that I advocate statutes establishing parentage at birth without the need for an adoption. See our DC statutes.
The standards are most important when the parents split up and there are no protections in place for a nonbiological or otherwise legally unrecognized parent. At this point the standards are aimed at the parent(s) with the legal power, and they make clear that honoring existing relationships is critical; that a voluntary resolution is best; and that homophobic arguments should never be used.
At the Lavender Law session where these standards were presented, an audience member asked whether the standards could be enforced on lawyers, whether a lawyer could be disciplined for not following them. The answer, of course, was no; no state bar is going to say a lawyer can't make an argument that is legal to make, even if it is unethical by these standards. But when lawyers refuse to represent a client who insists on a position contrary to these standards, it does send a message about what's right. Unfortunately, there are plenty of other lawyers the client can find.
There aspirational standards have value even if there is no enforcement mechanism. I personally thank Bill and Joyce for the hours they spent developing this important document.