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Summary: In this special Pride Month episode, Elizabeth Stephenson, Sarah Hink, and Jen Bordeaux discuss the intricacies of family law as it pertains to same-sex relationships. The episode delves into the legal challenges and considerations for LGBTQ+ couples, particularly in North Carolina. Topics include custody issues, child support, surrogacy, adoption, and the recent Court of Appeals case affecting same-sex couples. The hosts emphasize the importance of legal guidance and community support for LGBTQ+ families.
00:00 Introduction and Greetings
00:49 Busy Times in Family Law
01:16 Pride Month and Family Law
01:56 Legal Nuances of Same-Sex Marriage
03:22 Common Law Marriage Explained
04:34 Recent Court Case on Same-Sex Custody
11:55 Surrogacy and Adoption Considerations
13:33 Community Support and Resources
15:39 Conclusion and Call to Action
Key Points:
- Introduction to Pride Month
- Overview of the significance of Pride Month.
- Brief discussion on the recent uptick in divorce and separation cases.
- Legal Landscape for Same-Sex Couples
- Examination of the laws applying to same-sex marriages in North Carolina.
- Challenges faced by same-sex couples regarding asset division, spousal support, and custody.
- Recent Court of Appeals Case
- Analysis of a recent case involving custody and child support for a non-biological parent in a same-sex relationship.
- Discussion on the legal interpretation of “mother” and “father” in child support statutes.
- Common Law Marriage and Custody
- Explanation of common law marriage and its non-recognition in North Carolina.
- Legal nuances in custody and child support for same-sex couples.
- Adoption and Surrogacy Considerations (00:12:30)
- Importance of legal contracts in adoption and surrogacy.
- Steps involved in ensuring parental rights and responsibilities are protected.
- Community Support and Resources
- Highlighting local resources and support systems for LGBTQ+ families.
- Encouragement to engage with local community centers and legal professionals.
- Advocacy and Legal Reform
- Call to action for legal reforms to ensure equality and fairness for all families.
- Importance of voting and reaching out to legislative representatives.
Resources Mentioned:
- Local LGBTQIA+ community centers and support groups.
- Legal professionals specializing in family law for same-sex couples.
- Mental health professionals with a focus on LGBTQ+ issues.
Call to Action:
- Get involved in local advocacy for legal reforms.
- Reach out to community resources for support and guidance.
- Contact legal professionals for advice on family law matters.
Creators & Guests
Host
Guest
What is Ex-it Strategy?
Your no bullsh$t guide to divorce with experienced attorneys from New Direction Family Law and guests and professionals who have been there. Unfiltered discussions to help you move from victim to victorious and from bitter to better.
[00:00:00] Elizabeth Stevenson: Hi everyone. It's Elizabeth Stevenson with New
[00:00:20] Sarah Hink: Direction Family Law. And I'm Sarah Hink Elizabeth, law partner at New Direction Family Law.
[00:00:26] And. Co criminal in the podcast world. If we are criminals, probably not. Probably guess not. We're probably pretty peachy. And of course we have Jim Bordeaux born boarding us,
[00:00:37] Jen Bordeaux: joining us today. I'm boarded here at the po. Yes. It's great to have both of you back here in in the studio together. It's been a little while.
[00:00:44] Yes, it has.
[00:00:45] Sarah Hink: Since all three of us have been here together. It has been. I forgot about that.
[00:00:48] Elizabeth Stevenson: Yeah. It's
[00:00:49] Sarah Hink: been crazy busy.
[00:00:50] Elizabeth Stevenson: Yes, yes. Lots of people getting divorced, separated, yes. Court hearings being
[00:00:53] Jen Bordeaux: held in contempt
[00:00:54] Elizabeth Stevenson: and from what I understand,
[00:00:56] Jen Bordeaux: nobody wants to settle. You guys have been in court like crazy recently.
[00:00:59] Elizabeth Stevenson: Yeah, we do. What is wrong with people lately? Just so people, I don't know. Some something in the water. I don't know.
[00:01:05] Sarah Hink: Just they're all narcissists, right? Every single one of them. It is a buzzword. So in pivoting from that. It's June, today is what? June? Fourth. Fourth. mm-Hmm. And June is the start of pride, month Pride.
[00:01:22] We just celebrated the, the 1st of June the other day, and continuing on throughout June. So today's episode, we're just gonna talk about a little bit about you know, family law and how it relates to same sex marriage and any kind of relationship that would fall into this general realm of marital laws.
[00:01:41] Also, a little update from the court of appeals that came through this. Still just a month ago or two. Mm. And just kind of go from there. Just a general overview. So as a general
[00:01:52] Elizabeth Stevenson: principal, Ms. Hi.
[00:01:54] Sarah Hink: Mm-Hmm?
[00:01:55] Elizabeth Stevenson: Yes, professor. We know that same-sex people can get married down North Carolina. No. And so what is that?
[00:02:03] They have different laws, different things apply to them that wouldn't apply to a heterosexual couple.
[00:02:06] Sarah Hink: No. The laws well. Well, depends, they should apply the same. And I think, you know, when we talk about the case today that we're gonna talk about, you can see a little issue with that. But generally, no.
[00:02:18] It, it applies the same as a a marital company. Okay? You have assets, division of assets, spousal, spousal support. So if there's one spouse who makes more money than the other, then there could be alimony. Custody if there's an adopted child or biological child, and that's where things get a little bit more sticky.
[00:02:35] But generally it is the same, and it's been about 10 years since it's been legal in North Carolina to be, to be married for same sex couples. I had an interesting question recently of like, okay, well if we were together. For, you know, 10 years before that. But we couldn't get married. Could we go back to, you know, question, kinda like backtrack it to when we would get married that get some retro stuff?
[00:02:56] Yeah. And I was like, no, absolutely not. That's not allowed. And it seems fair
[00:03:00] Elizabeth Stevenson: though, doesn't, it Certainly seems fair because especially if you, you know, we start quote unquote with the premise of half the length of the marriage, we spousal support. Right. Well, doesn't seem fair, they. Good. We've been together 30 years and we've been married for two.
[00:03:11] That that seems very unfair. But
[00:03:13] Sarah Hink: we're not a law of fairness here. No. All true. My clients that No. And then it goes to like a common law marriage and we're not a common law marriage state's state either. That's true.
[00:03:22] Jen Bordeaux: So, and what exactly, just for listeners, 'cause I know, I think we've had this on like a frequently asked.
[00:03:26] Question episode before, but somebody just recently asked me about it too. What exactly is common law marriage for those that may not know for any listeners that may not know or watchers Well,
[00:03:34] Sarah Hink: hi YouTube. We're only licensed in North Carolina, so
[00:03:37] Elizabeth Stevenson: we're, we're attorneys, but we're not your attorney. No. So don't listen to us.
[00:03:42] I'm gonna tap into like, my
[00:03:43] Sarah Hink: general knowledge is basically, that's what I remember
[00:03:45] Elizabeth Stevenson: from the bar exam.
[00:03:46] Sarah Hink: Yeah. And it's, it's really state specific as to how many years you've had to Right. Live together, be together, live together. I think there's definitely more factors you have to prove in order to common law, marriage.
[00:03:57] I think some places you can fill out forms. It's a whole bunch of stuff that we can't talk about it and it doesn't, doesn't matter in North Carolina,
[00:04:04] Jen Bordeaux: if somebody was in a common law marriage state that did, you know, that does recognize it and they move here?
[00:04:08] Sarah Hink: No.
[00:04:09] Jen Bordeaux: No. All right.
[00:04:10] Elizabeth Stevenson: Nope. I think South Carol is that, I think South Carolina is, if you're.
[00:04:14] If you're listening to South Carolina, you're get divorced day. Stay in South Carolina. North Carolina. Yeah. Pretty much derailed that a little bit. Sorry guys. It's alright.
[00:04:24] Sarah Hink: Yes. A lot of, I mean, everything is pretty much the same except for, like I said before, the children that comes into an issue with kind of like how the laws are written in North Carolina.
[00:04:34] And there was a recent case coming from the Court of Appeals about, a family. There were, they were married. I believe that's people, no, they were not married. Even. Not married. So two women, same sex couple. Mom, number one. Well, in, in the case they refer to mother Sure. As the biological, biological, biological mother.
[00:04:56] Yeah. And the other females partner. Right. So I guess there's no mom number one, mom number two. No. I think there should be mom number one. Number two, absolutely. That goes to the heart of this case. I know. But biological mother had a, a sperm donor and they proceeded to live as a unit. The three of them, mom, partner, and child.
[00:05:15] Eventually they separate and. They file for custody. So partner files for custody of the minor child. The court says, yes, this partner has been acting as a parent as close with a minor child. Yes, you can have shared custody with mom. So then biological mom says, well, okay, then I'm gonna file for child support.
[00:05:36] And the court says, Nope. That's not gonna happen here because partner is not biological mother and is not biological father. And they go back to the reading of the statute to say, well no, it's not gender neutral. It is very specific. Mother and father. Biological parents are the only ones that can be ordered to pay child support unless you agree to it outside of that, through a, agreement contract between each other.
[00:06:02] Mm-Hmm. So that was a new case and it's kind of like, doesn't. It goes back to the fairness. Well, that doesn't make sense. You're sharing custody of this minor child. The court has already determined that
[00:06:10] Elizabeth Stevenson: you could have co, you could share custody then,
[00:06:12] Sarah Hink: right? A parent that you've been one of two parents in this child's life and but for your sex and gender, then you would have to pay child support.
[00:06:21] Elizabeth Stevenson: Right. And it's interesting to me because when you read like the alimony statute, it says spouse, right? I think custody says parent. Yes. You know, and, but it appears that 1530 0.4 says Mother. Father, mother, father, which, which is very and an easy fix to me. Yes. And the court stuck har that they did not wanna move.
[00:06:41] And of course they did.
[00:06:43] Sarah Hink: And I don't know if there, they did that to kind of like, I don't know, make things hard for certain kind of people looking at the makeup of the court. Well that's, well
[00:06:53] Elizabeth Stevenson: you could say that. Or it could be, we're gonna put this out. Well, I'm sure with the makeup of the court we have, they didn't, but we put this out and somebody, y'all pay attention and get this fixed.
[00:07:01] Sarah Hink: Yeah. And that's when they kind of punted it to the general assembly. Right. To say this is a problem we might run into in the future. Thinking back to what this couple could have done differently. They, I mean, the child was not adopted by the non-biological parent. Parent. Right. So that could have been something to help the situation and adopted the child and been the legal parent.
[00:07:21] Right. And just any third party can seek and ask for custody. Of course, you have to prove some things in court that parent's unfit. And in this case, they didn't have to show that there was unfit, right. Because they kind of stood in the shoes of what would be two parents,
[00:07:34] Elizabeth Stevenson: correct. Right. So custody wasn't really an issue.
[00:07:36] It was more the, the child support. So I know that. We have prenuptial agreements, but I don't know if maybe a cohabitation agreement, I don't know if can a
[00:07:46] Sarah Hink: parenting agreement
[00:07:47] Elizabeth Stevenson: agreement or something that can address child support. Yeah. You know, while they're, I don't know if while they're together, but at least they're, they're contemplating separating.
[00:07:54] That's a problem. I
[00:07:54] Sarah Hink: think there was a lot of, you know, that the one parent who sought custody. And refuse to pay the child support. Everyone kinda looking down at that person like, what you doing? Like that's not right. That's a, a child that you apparently love, you want custody of. You should pay for support to your other family.
[00:08:09] Well, we see that a lot
[00:08:10] Elizabeth Stevenson: in, in heterosexual. Oh yes. Couples too. Yeah. Yes. Unfortunately it's not fair. Right?
[00:08:16] Sarah Hink: Right. She's gonna go buy shoes with that. Right.
[00:08:18] Elizabeth Stevenson: So find out who your, who your representative is. Call them up, email them, say, you know, that's how, that's the way things get changed.
[00:09:14] Sarah Hink: Yeah. That is how things get changed.
[00:09:16] And you think about children and every couple, no matter how they're made up, if they wanna have children can seek options for that. Talk to an attorney about you know, adoption. There's. Insemination, the contracts you can do. Mm-Hmm. And all sorts of things for preparing for that. And even if you're gonna have a surrogate, there's a surrogate contract, right.
[00:09:37] Just making sure that everything is done in a contract and with an attorney. So if you find yourself down the road and you're separating from your partner, then, I mean, they weren't even married, so breaking up or what have you. Right.
[00:09:49] Jen Bordeaux: That it's covered. Agreed, agreed. So you were saying in a, a prenup in this situation wouldn't have even worked.
[00:09:56] Elizabeth Stevenson: Well, they didn't get married. Right? Well, they didn't get married, but you. But I mean, you can do, but married folks can do con, you can contract between each other and they're not married. So I'm assuming they can contract about Yeah. Whatever they wanted to. Mm-Hmm. The statute doesn't apply to them. But you can't contract about in a prenup, or I don't even think in a postnup about child support.
[00:10:13] Sarah Hink: Yeah. I mean, it all goes to the child. All that's supposed to be the focus, right? Yeah.
[00:10:17] Elizabeth Stevenson: Right. So, I don't know. They could have done some contract before this while they were still together that says we're each gonna share an expenses for this child or something.
[00:10:24] Sarah Hink: Right.
[00:10:25] Elizabeth Stevenson: You know? But that's the only thing I can think of, and I don't even know if that's against public policy.
[00:10:29] Sarah Hink: Yeah. And there was a dissent to this case and they pulled out one of the, the big cases that we all focus on in custody price be Howard, and it's, you know, in that case they said it's clear that duty of support should accompany the right to custody in cases such as this one. That makes a whole lot of sense to me.
[00:10:45] Elizabeth Stevenson: Well, I, I can't, other than mother, father, there's. W what's the diff, there's no difference. That's what's crazy to me.
[00:10:52] Sarah Hink: Yeah. And I think, you know, there's two parent households, but then I know that there's like, these days, like there's poly, poly, then you got three, three parent households, and then what are you, who's paying who?
[00:11:03] I don't know. So there is a little bit of a, a, you know, slippery slope there. And two, you know, how is that gonna work? I have no idea how that would work.
[00:11:10] Elizabeth Stevenson: Well, I think just as a parent. It ethically. Mm-Hmm. You should be paying something. Yeah. You know, to the other parent, I don't know what their custody schedule was.
[00:11:18] Yeah. I don't know if it's said in here or anything, but split the cost. I mean, if you're having custody paid for them, your, your child Correct. That you love and care for.
[00:11:27] Jen Bordeaux: Yeah. It's literally called child support. Child support. Support your child.
[00:11:30] Sarah Hink: Yeah. But this is a great example of, you know, some of the issues we run into with same sex relationships and children and adoption and custody and now child support.
[00:11:39] So. It's definitely important to talk to an attorney if you're at all considering you know, adopting a child, having a child this way and just making sure that you know what could happen in the future. Correct.
[00:11:50] Jen Bordeaux: And what, 'cause I know we've had another attorney in our office has had a case like this.
[00:11:55] I dunno if you guys have or not, but you kind of talked about like insemination, which made me think of you know, surrogacy. Mm-Hmm. And we had, you know, I've had second sex couples come to us to draw up like surrogacy contracts with the. I guess technically the biological parent. So what that was not gonna be raising the child.
[00:12:13] So what, what are considerations there that maybe same text couples need to be thinking about? Like why it's important If you're gonna have, so let's say it's a, you know, a gay couple that is two men that are gonna be that a female that's gonna be the surrogate. What's important to consider there or why is that important, so to speak, and looking at like a contract like that?
[00:12:30] Sarah Hink: Well, you definitely have to have a contract and then you go get a, a judgment. It's this whole process. Right. And it's gonna be the same for a same sex couple to use a surrogate or a heterosexual couple that uses surrogate. I mean, there's just a lot of options these days with infertility issues with, with women too, so.
[00:12:46] Right.
[00:12:46] Elizabeth Stevenson: But it's just the adopt, I mean, adoption process is the same across the board. Yeah. Where because my son was adopted, so the, the biological. The person giving birth to the child has to give up parental rights to that child. So that's one thing you wanna make sure is happen Yes. Is contracted for and that sort of thing.
[00:13:02] And it's my understanding that, you know, you can pay for expenses and that sort of thing, but it's not like you can buy this baby. No. You know, like an, an ordinary amount of money to pay this person to do this baby has to be, you know, a contract based around the expenses and that sort of thing. So it was just, adoption is statutory and it, if you miss one period, one comment, whenever.
[00:13:22] You could have a problem. Yes. Go, go see a, go see an attorney. For sure.
[00:13:26] Sarah Hink: Yes. Don't do any like back pages, like that's not good. No. Yeah. And we have a great community and support in Elise Wake County. Right. For the community. If you, I know we get a lot of people that are looking to change names and that process can be a little confusing.
[00:13:44] So there are resources, Jen, if you wanna talk about any of the resources for what we Yeah,
[00:13:48] Jen Bordeaux: yeah. So we've I mean specifically here in Wake County, which is. Raleigh and surrounding towns which is where we are located. There's a LGBTQIA plus community here that they have different clinics and things like that to help with name changes.
[00:14:02] And of course we've represented folks in, in name changes. And I mean. I ibel to my knowledge, a lot of our surrounding counties also have the community support like that and centers like that as well. I've seen a lot of that recently. Obviously. I mean, Instagram and threads and everything else is just like all rainbowed out.
[00:14:20] It's beautiful. I love it. So yeah, I mean, definitely look into what your local community, if you're not, you know, in this direct area or another state with your local community. There are, I love to see that there are more support centers like this popping up to help provide those resources. And then obviously if, if it's related to family law, custody or Yeah.
[00:14:37] Prenup or whatever it may be. We got you covered too for, for
[00:14:40] Sarah Hink: parents too. And we, we see that in some of our custody cases where there might be a minor child who is going through I don't know, like. Either a gender transition or just, you know, finding more about their sexuality and one parent's being supportive of this, the other parent is not being supportive of that.
[00:14:56] So it shows up in a lot of different areas in family law and it's good to have support out there for, for children, for
[00:15:02] Jen Bordeaux: teenagers, and for adults. Absolutely. And we're also we know we've worked hard to build a network for. With the different needs of the folks that we're working with, whether they become clients or where their starting point of what they're looking for.
[00:15:15] And there are absolutely to, to your point about, you know, like gender transitions or anything related in that realm. And for the queer community there are, you know, definitely mental health professionals that focus on that and have strong supports around that. Which is, is great. And we've definitely built a network of some folks in our area here too.
[00:15:32] So there are absolutely those resources, so please don't hesitate to reach out to them and. Always happy to be of help if we can. Yeah, reach out to them.
[00:15:40] Sarah Hink: Vote. Reach out to your general assembly. Assembly to make sure that laws are equal and accessible for all. And ain't that some shit? That's some shit.
[00:15:48]