Law and Family Formation Among LGBQ‐Parent Families

• Author: Kristin Scherrer,Brandi Woodell,Emma Finken,Emily Kazyak
• Date: 01 July 2018
• DOI: http://doi.org/10.1111/fcre.12353
• Published date: 01 July 2018

SPECIAL ISSUE ARTICLES

LAW AND FAMILY FORMATION AMONG LGBQ-PARENT FAMILIES

Emily Kazyak, Brandi Woodell, Kristin Scherrer, and Emma Finken

This article addresses how the law affects family formation among families with lesbian, gay, bisexual, and queer (LGBQ)

parents in the United States. Our discussion draws on a socio-legal approach to law that focuses not only on the law on the

books (what we refer to as “legal barriers”) but also on issues like how the law is practiced, how people experience the law

in everyday life, and how the law serves as an interpretive framework through which people understandthemselves and their

families (what we refer to as “social barriers”). In our review, we highlight how attorneys can play a role in valuing and

advancing rights for LGBQ-parent families and LGBTQ prospective parents.

Key Points for the Family Court Community:

•Up-to-date review of research on the law and its impact on LGBTQ-parent families

•Synthesis of nearly 100 articles

•Recommendations for attorneys on how they can work with LGBTQ-parent families

Keywords: Family; Law; LGBQ; Parent; and Sexuality.

In the Obergefell v. Hodges (2015) ruling that extended marriage to same-sex couples, the Court

referenced lesbian, gay, bisexual, and queer (LGBQ) parents, arguing that the lack of marriage equity

“harm[s] and humiliate[s] the children of same-sex couples”(p. 15). Findings from social science lit-

erature underscore the negative impact that a lack of recognition of same-sex relationships has on

parents and children alike (Bernstein & Taylor, 2013; Goldberg & Kuvalanka, 2012; Kimport, 2014;

Meezan & Rauch, 2005; Richman, 2014; Riggle, Rostosky, Prather, & Hamrin, 2005). Moreover, the

lack of marriage rights in the United States also resulted in LGBQ people facing a number of legal

barriers when pursuing parenthood (Ball, 2012; Kazyak & Woodell, 2016). For instance, both par-

ents could not be listed on the birth certificate; some states excluded same-sex couples from adoption

because they were not married; and, in general, much uncertainty and variation existed across states

(Baumle & Compton, 2015; Ball, 2012; Shapiro, 2013). Following Obergefell v. Hodges (2015),

nearly all of these legal barriers have dissipated. Married same-sex couples are thus generally

afforded the same rights regarding parenthood as married heterosexual couples. For example, laws

regarding adoption that require marriage no longer exclude same-sex couples. In addition, at the

birth of a child, both same-sex spouses can be listed on the birth certificate in all states.

Nonetheless, we argue that the law continues to be an important issue to consider in LGBQ-parent

families and that marriage equality does not alleviate all of the legally related problems that these

families face. Reviewing social science literature that examines how LGBQ-parent families are

impacted by the law,

1

we discuss legal barriers as well as social barriers connected to the law that

exist for LGBQ parents and prospective parents. Our discussion draws on a socio-legal approach to

law that focuses not only on the law on the books (what we refer to as “legal barriers”) but also on

issues such as how the law is practiced, how people experience the law in everyday life, and how the

law serves as an interpretive framework through which people understand themselves and their

Correspondence: ekazyak2@unl.edu

FAMILY COURT REVIEW, Vol. 56 No. 3, July 2018 364–373

© 2018 Association of Family and Conciliation Courts