STEPFAMILIES HEADED BY SAME-SEX COUPLES: DEMOGRAPHICS, FORMATION, AND LEGAL CONSIDERATION
By Brad van Eeden-Moorefield, MSW, Phd and Carly Nacer, M.Ed
Only recently have researchers started to learn more about stepfamilies headed by same-sex couples, although what we know continues to be severely limited and, often, is simply a best guess. As is the case with stepfamilies and same-sex headed families generally, this particular group of families experience a good deal of discrimination (The Experiences of Stepfamilies Headed by Same-Sex Couples). Additionally, much of what people think they know about these families comes from myths and other incorrect information. One of the most important areas of confusion for these stepfamilies concerns legal status and recognition (or lack thereof). Here we present some of what we know about legal challenges experienced by these stepfamilies. We also discuss the best guesses we have about the prevalence and characteristics of these families as well as the various ways in which gay and lesbian individuals come together to create stepfamilies. We believe understanding this type of information is particularly important because (a) most believe same-sex headed stepfamilies are created only when an individual has a previous heterosexual marriage, divorces, and comes out as gay or lesbian, and (b) how they create their stepfamily (through cohabitation or marriage, when available) can support or make these families vulnerable in different ways.
Who Are Stepfamilies Headed by Same-Sex Couples and How Many Are There?
Unfortunately, there is no good data available to help us estimate the number of stepfamilies headed by same-sex couples. In fact, the data available to estimate different-sex stepfamilies also is limited due to changes in collection efforts during the 1990s. This is true both for numbers of families and their characteristics. Data from the 2005-2011 American Community Survey identified just under 650,000 same-sex couples. Of these, about 17% reported being legally married and about 16% reported being in a legally recognized domestic partnership or civil union. The remaining couples were cohabiting. These are somewhat low estimates given many of these couples fear sharing their sexual orientation and due to limitations with the questions included in the survey that categorized some same-sex couples as roommates compared to romantically partnered, as an example. More inclusive questions are being added to the Census as well as other nationally representative datasets that should provide stronger estimates in the future. At the same time, there are current suggestions to delete important family questions from the American Community Survey. Just over 51% were lesbian couples, just over 50% were between the ages of 30-49, and most were white (76%). Additionally, these couples tend to be similar to the broader U.S. Demographics, although there are more mixed-race/ethnic couples compared to the broader U.S. Population.
We also know that about 20% of same-sex couples are raising at least one child, although we do not know how many have children 18 or older. Of those raising children, estimates suggest about 7% are considered stepchildren of the respondent, and the remaining children in the household are the respondent’s biological, adoptive, or foster children (Goldberg, Gartrell, & Gates, 2014). However, no data are available to estimate how many of the biological, adoptive, or foster children of the respondent would be a stepchild to the respondent’s partner. Those with children are more likely to live in states without legal recognition and be headed by lesbian couples. However, with a surge of recent changes to marriage laws this estimate is likely to decrease significantly.
Break-up and divorce rates tend to be similar to different-sex couples with a few new estimates finding slightly lower rates. Among different-sex couples, about 30% of marriages are remarriages, and about 65% of those contain at least one child, thereby creating a stepfamily (Cherlin, 2010; Kreider, 2005). We also know remarriage rates have dropped and there is an increased in the number of cohabiting stepfamilies (non-legal stepfamilies). In fact, some research finds that about 60% of cohabiting couples have a child from a previous marriage or relationship (Carlson & Furstenburg, 2006).
If we take all of this information, we can make some general best guesses about stepfamilies headed by same-sex couples. Demographically, stepfamilies headed by same-sex couples tend to be similar to different-sex stepfamilies. Given the number of states that recently legalized same-sex marriage, we can suggest that more legal stepfamilies headed by same-sex couples will be formed in the years ahead- a trend opposite from different-sex stepfamilies. However, we also recognize that the majority of these stepfamilies will continue to be non-legal stepfamilies, and this should remain stable for at least the next few years. We also can suggest that the majority of same-sex headed stepfamilies likely are headed by lesbian couples and some continue live in states without legal protections. Accordingly, we can suggest that the majority of these stepfamilies may be particularly vulnerable given their lack of recognized legal status in the U.S. in addition to the limited legal recognition of stepparents.
How Do Same-Sex Couples form Stepfamilies?
People come together in many ways to create families. Here, we call these pathways. Pathways for stepfamilies can vary by legal status of first relationship (e.g., cohabiting, marriage), legal status of second relationship (e.g., second cohabiting, first marriage, remarriage), sex of first partner, and sex of second partner. They also can vary by how the child was brought into the first relationship (birth to biological parents, artificial insemination, adoption, foster, etc.) or the second. So, there is a lot of variation among stepfamilies headed by same-sex couples that runs counter to many of the social myths related to these families, particularly that which suggests they are only created when one partner had a child in the context of a previous different-sex marriage.
In our own interviews with these stepfamilies, the variety of pathways was incredibly clear. For example, one stepfamily shared their story: Jan (all names were changed) was cohabiting with her partner of 7 years, Sue, in a state without any form of legal recognition for same-sex couples. Jan’s brother, Mark, had one young son, Juan. The biological mother had her parental rights terminated years before. Unfortunately, Mark passed away and Jan was awarded full parental authority through a family adoption of Juan. Jan and Sue ended their partnership a few years later. The court never recognized Sue’s presence or involvement with Juan so she was never allowed to see Juan again as of the time of our interview- Jan did say this created a lot of hostility as Sue wanted to have access to visitation. Jan repartered and began cohabiting with Daniella (5 years at the time of the interview). Daniella had two children from a previous heterosexual marriage and shared custody with her ex-spouse. During this time they decided to bring another child into their lives through adoption. Jan was the only adult allowed to adopt their new son because of laws governing adoption in their community and state. Although they talked a great deal during the interview about both the struggles of creating their family and bringing everyone together in a new household, they also talked about how much love filled their home. This was evident from our perspective as well.
A major theme that continued to come up for this non-legal stepfamily was the high level of vulnerability they felt because they could not forge legal connections among one another. What would happen is something happened to one of them? What would happen to their children? Was it likely if something happened one partner might not see “their” child (the adoptive child) or stepchild again? Might current custody be lost? Consistent with research, they both felt invisible in the eyes of the law and this created a lot of stress and lack of clarity for them. Unfortunately, their family was not in a financial position to have an attorney prepare any legal documents that would give them a few protections should something happen or should they dissolve their relationship in the future. At the same time, they also shared information about news stories they had seen on television about judges ignoring these types of documents when biological family members challenged them. Clearly, the legal issues this stepfamily (a non-legal stepfamily) experienced captures some similar experiences of other stepfamilies headed by same-sex couples. It also demonstrates a diversity of pathways used to create families.
Currently, 36 states, the District of Columbia, and 21 Native American tribes allow same-sex marriages (first, or subsequent). For stepfamilies headed by same-sex couples in these states, all family laws apply equally. For non-legal stepfamilies headed by same-sex couples in these states or states without legal recognition, there is no legal standing. As such, it is important to be aware of the difficulties that may be experienced regarding the legal system.
Due to the fact that some states do not allow marriage of same-sex couples, issues surrounding property, taxes and children are common. Same-sex couples are not always granted the medical benefits of their partner, as some companies do not provide access to such benefits. Also, without legal mandate as a married couple, if a partner has a medical emergency or a chronic illness, the biological family members are in charge of making the decisions, as opposed to the partner. A health care proxy could be created, in combination with a living will, which defines who can make decisions based on your behalf if a medical emergency occurs. If a health care proxy is not created, many times a family member will be granted rights regarding medical decisions. Importantly, there have been cases in which a biological family member went before a judge to contest such documents and the judge granted the biologically-related family member’s request. For non-legal stepfamilies these are more critical, and likely issues, compared to legal stepfamilies where the spouse is recognized (whether same-sex or different-sex).
Regardless of the assumptions that society may have regarding same-sex headed families, both heterosexual and same-sex stepparents have the same parental responsibilities and no legal authority or recognition. For example, stepparents legally cannot sign and authorize a yearly physical exam, even if their insurance is covering the exam. There are some situations that allow stepparents to provide such consent, but are highly unlikely because they require both biological parents to allow it and provide a signed document. There are some instances where such occurrences may be overlooked, although we expect due to discrimination it happens less often for gay or lesbian stepparents.
The legal rights of child custody for same sex parents is not clearly defined. The term “best interest of the child” has been used by court systems when deciding where to place the child. This term can be used to discuss the child's age, health, as well as preferences of the parents, to name a few (Falk, 1997). Custody arrangements in divorce proceedings may require families to publicly disclose their sexuality and, in these cases, courts might favor the biological or adoptive parents as opposed to the stepparent (Dodge, 2006). This is especially true when a second parent or step-parent adoption did not occur, which then forces one parent to the be the “primary parent” of the child (Dodge, 2006). When there is no legal recognition of the stepparent or legal relationship between the stepparent and the child, the partner's position as part of the family is less permanent (Moore, 2008). The parent who had not claimed legal rights has to depend on the voice of the primary parent to speak on behalf of their rights to the child.
Unfortunately, there has been evidence from studies of court proceedings that courts tend to deny custody to the same-sex parent. This appears to be occurring less frequently as marriage laws change although it remains a fear for some parents and couples. Same-sex couples may try to distance themselves from their ex-spouse, as a way to further keep their relationship hidden (Lynch & Murray, 2000). Some couples also try to keep their relationship hidden by claiming their partner as a roommate as opposed to significant other. When one parent's same-sex relationship is shared with the court, at times the court can mandate that the same-sex partner not be at the home when the child is visiting or can disallow overnight stays as well.
Same-sex families can face many challenges with the legal system. For example, child custody and legal recognition of their relationship are two main areas discussed above. Same-sex couples should clearly define their relationship in a co-parenting agreement as well as create a health care proxy in order to properly define the roles of each parent, should a court proceeding or medical emergency arise. Additionally, it is important to research your state's legal regulations regarding same-sex relationships and parenting in order to become acquainted with the law and rights. While courts try to identify the best environment for the child, decisions can be subjective rather than informed by available research. And, there has been evidence that courts do not always support child custody in same-sex relationships. It is important to keep up to date on the legal rights in your state so that you can be best prepared for possible court proceedings.
* Dr. Brad van Eeden-Moorefield is an Associate Professor and Carly Nacer is a Doctoral Student in Child & Family Studies. Both are at Montclair State University.
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