Increasingly, LGBT family dramas are making headlines in newspapers and magazines across the United States or playing out in television dramas, such as the L Word. But as the issue of LGBT parenting increases is there adequate legal support?
According to the San Francisco-based National Center for Lesbian Rights the answer is no. In response to the estimated 5,000 calls a year to its helpline – 50 percent of the calls received were either from lawyers or people seeking legal help for queer family issues – NCLR has launched the Family Protection Project.
The project is the brainchild of Cathy Sakimura, 27, an equal justice law fellow and former NCLR law clerk, who received $75,000 for two years to develop the project in partnership with NCLR, which is providing half of the funding out of its $4.1 million annual budget along with support from an anonymous donor who is providing an additional $37,500.
"I spoke with a lot of low-income parents who were talking about legal problems they were having, but there was no place to refer them to," said Sakimura, who recognized the problem while working on NCLR's helpline during 2004.
She continued to think about the families and the legal situations in which they suddenly found themselves. Many of the situations could have been prevented if they were aware of the legal protections and had access to legal resources at low or no cost. She began thinking about ways to improve the situation, eventually bringing her idea to NCLR during the summer of 2005.
The first phase of the project began January 17 as a partnership with the Bar Association of San Francisco's mandatory continuing legal education services, which holds lunchtime workshops to educate lawyers on current legal issues. NCLR also plans to work with law schools in California, Florida, and Pennsylvania. The goal is to build upon the networking and resources NCLR already provides to attorneys by educating lawyers about laws that can be applied to LGBT families' situations. These laws, many of which are new or changing in each state, are a challenge for many lawyers who want to work with queer families.
"The biggest issue that we've seen recently is really not homophobic courts or bad laws, but the lack of resources for working poor and working class LGBT folks. The access is a much bigger hurdle in many situations than homophobic laws," said Kate Kendell, executive director of NCLR. "The law in many states, including some in the South, no longer permits a lesbian or gay parent to be denied custody solely based on sexual orientation."
According to statistics from the National Adoption Information Clearinghouse, there are an estimated 6 million children living with LGBT parents in the United States.
Finding and training lawyers about the specific issues same-sex families face is only half of the goal of the project. Once a base of qualified lawyers is identified the next step is to connect clients with lawyers at a low-cost rate or pro bono. Outreach materials and a Web site are currently in the process of being developed.
Experts at the Williams Institute on Sexual Orientation Law and Public Policy at UCLA School of Law used the 2000 census and calculated that same-sex parents with children earn $10,000 less than heterosexual married parents.
The legal cost alone for families – many of whom are same-sex women couples that historically don't earn as much as men or heterosexual couples on average – is an issue the project is addressing. One of the major economic factors for lesbian and bisexual women couples is the wage gap that, according to a recent column by Susan Estrich, is slightly increasing for college educated women rather than decreasing. Forget the glamour of the L Word, the reality for many families is living paycheck to paycheck. Denial to the right to marriage is an additional obstacle that places queer families and their children in difficult, and sometimes critical, legal situations.
"To defend yourself as a LGBT parent to retain custody could cost $20,000 to $50,000," said Kendell.
Karen Doering, senior counsel for NCLR's southern regional office in St. Petersburg, Florida, agrees.
"They don't have the financial resources marriage gives access to. There are 1,500 rights and responsibilities the government grants couples when they get married," said Doering. "There are about a dozen of those protections same-sex couples can contract for: power of attorney, ability to make burial decisions – but they don't have the $1,500 to $2,000 to seek legal representation to assist with these contracts or who will know how to protect them and their families. So they run into a crisis situation."
Crisis averted
Shawn (not her real name), 33, is a lesbian and a hospital manager assistant in Los Angeles. She is a prime example of the type of person who could benefit from NCLR's new project, which is expected to begin providing service within the next year.
Two years ago, Shawn and her former partner dissolved their domestic partnership. Shawn assumed that their domestic partnership would allow her joint custody of their 2-year-old daughter with her partner, who is the biological parent. Just before they separated they were in the process of a co-parent adoption, but it never was completed. Shawn never imagined that her ex-partner would try to legally bar her from seeing her daughter, but that's what happened.
"It wasn't a question of how I would see her again, but when," said Shawn. "I always knew in my heart that I would see my daughter again."
Her instinct and little knowledge she had about her rights as the non-biological mother were correct. Her domestic partnership provided her joint custody rights, but it was a legal battle that she couldn't afford.
For a year and a half she and her new partner, who have no legal background, successfully navigated the judicial system with the assistance of information on NCLR's Web site and other research they found, but then the couple reached a point where they needed a lawyer. After calling several lawyers Shawn found Rebecca Lizarraga, a lesbian attorney.
"I couldn't succeed on the cases I'm working on without having that resource," said Lizarraga about the Family Protection Project and Sakimura's availability to answer her questions. Lizarraga thought she would be doing some sort of gay advocacy, but coming from a judicial and attorney malpractice background, she didn't necessarily realize the legal complications involved with non-traditional families.
With the project's help, Lizarraga was able to quickly assist Shawn with finding the resources she needed, such as a court-approved counselor. Lizarraga's low-cost legal assistance provided Shawn with the ability to have partial visitation rights. She is now rebuilding her relationship with her daughter on the weekends. Shawn told the Bay Area Reporter that her daughter has forgotten a lot about their relationship during the two-year separation. That has been very painful for her and her daughter.
"Children have a right to two parents," said Lizarraga, who is shocked by how some biological parents are using the legal system against non-biological parents. "If you want equal rights you need to take on the responsibility."
Sakimura's primary goal creating the Family Protection Project is to protect children of LGBT families.
NCLR plans on expanding the program to Texas and Wisconsin by the middle of this year and it is reviewing more states for possible inclusion. The first workshop, which is being held at the University of Miami, Florida this week, already has an estimated 60 attorneys and law students registered.
For more information on the San Francisco Bar Association's MCLE workshop, "Current Issues for Lesbian, Gay, Bisexual, and Transgender Families," on March 21, visit http://www.sfbar.org.