Marriage, divorce, custody and parentage are standard matters for family law practitioners. But for attorneys who represent LGBTQ+ clients and families, bringing existing legal protections and framework to their clients often involves creative approaches and open-minded thinking.
“Trying to protect the families, gay families or not — we called it nontraditional families in the 80s and 90s — it just required creative lawyering, so it was kind of fun,” explained Karen Langsley, a long-time family attorney with an LGBTQ+ practice.
Langsley grew up in California and in 1978 moved to San Francisco for law school. When she started her family law practice in the bay area after graduation, it was in the midst of the gay rights movement.
Langsley, who is lesbian, explained that from the beginning of her career she was interested in advocating for the rights of LGBTQ+ couples, parents and families at a time when very few laws were in place to do so and stigma against the LGBTQ+ community was high.
While she currently doesn’t accept new clients and works as a guardian ad litem for Colorado courts, Langsley explained the evolution of LGBTQ+ family law has changed significantly.
Laurence Gendelman, a family and probate attorney and one of the founders of Denver firm Gendelman Klimas, opened his firm in 2016 with the hope of providing effective and safe counsel for LGBTQ+ clients and others. Gendelman, a long-time board member of the Colorado LGBT Bar Association and who identifies as gay, said that representing LGBTQ+ clients requires an open mind for family situations that aren’t heteronormative.
“Attorneys have to advocate for their clients to make the law be applied in ways that reflect their family units,” said Gendelman. Gendelman also works as a child family investigator for state courts and about half of his CFI work involves LGBTQ+ families and children.
A Quick History of Same-Sex Marriage
In 1975, newly elected Boulder County clerk Clela Rorex issued the state’s first same-sex marriage license in the U.S. While a handful of same-sex marriage licenses had been issued in other states prior to 1975, they were all ultimately repealed or revoked. Rorex’s never were.
With the legal OK of Boulder’s district attorney, Rorex went on to issue six marriage licenses to gay and lesbian couples before Colorado’s attorney general put a stop to it.
Around 15 years later in Hawaii, a handful of same-sex couples in 1990 embarked on a legal battle to challenge the state’s refusal to issue them marriage licenses. While the case was dismissed after a state constitutional amendment, a ruling by the state’s Supreme Court opened the door to compelling other states to recognize gay marriages from Hawaii under the full faith and credit clause of the U.S. Constitution. The Hawaii cases led to the 1996 passage of the Defense of Marriage Act by Congress which banned federal recognition of same-sex marriage.
In the following decades, states passed laws banning or granting same-sex marriage. Colorado voters approved a 2006 ballot initiative to block the recognition of gay marriage that was later struck down by an Adams County district court in 2014 for violating the U.S. Constitution.
Same-sex marriage bans were struck down nationally by the U.S. Supreme Court in 2015’s Obergefell v. Hodges.
But the 2015 ruling didn’t close the door on LGBTQ+ marriage matters. Since the ruling invalidated state-level bans on same-sex marriage, it opened the door to retroactively establishing common law marriages for LGBTQ+ couples. The Colorado Supreme Court in 2021 expanded the criteria of common law marriage to account for gay and lesbian relationships which can look different from heterosexual ones.
Parenting and Family Units
Running parallel to the fight for marriage equality, family law attorneys worked to extend parental protections for same-sex couples.
When she first began her practice, Langsley said parenting matters often involved blended families.
“For a long time, people would bring children who were conceived in other relationships, heterosexual relationships, to their same-sex relationships,” explained Langsley. “And so then we started trying to figure out, ‘okay, how do we protect those families?’ Because the protections that were available to heterosexual families simply did not exist for same-sex families.”
In 2002, Langsley moved with her children from California to Texas and recalled how a network of LGBTQ+ attorneys and allies would take creative approaches to protect LGBTQ+ families.
She worked with an adoption advocate in San Antonio, Texas, who had experience in adoptions naming legal guardians of the same sex. Often these were cases when grandparents adopted a child, but an aunt or uncle was also listed in case the grandparents passed away.
For same-sex couples, Langsley and another attorney she worked closely with in Texas would file adoption papers with sympathetic judges based on those familial adoptions naming same-sex parents.
As artificial reproductive technology improved and became more widely available, new avenues opened for same-sex parents. Nonmedically assisted conception also became a route for many same-sex parents looking to have children. But with those new avenues came new potential pitfalls when it comes to establishing parental rights for LGBTQ+ families.
Langsley thinks of a recent court case out of Oklahoma where a mother lost custody of her two-year-old son after she and her ex-wife separated. The former couple conceived their son through at-home, nonmedically assisted sperm donation and got married while his biological mother, Rebekah Wilson, was pregnant. Kris Williams was listed on his birth certificate, their son took her last name and she raised him for two years. But a state court judge in February ruled that since she wasn’t part of the sperm donor agreement and hadn’t legally adopted him, she didn’t have parental rights under a state law that predated Obergefell.
While Williams’ attorney said they plan to appeal the decision, Langsley explained the case is an example of how well-established family law protections for heterosexual families aren’t always applicable for same-sex couples — and in the crosshairs of the legal mismatches are families.
“It’s like a parent dies,” said Langsley. “It is not just at age two, you know, it happens all the time. These kids lose their significant relationship with a primary parent figure because these courts are coming up with just horrible rationales.”
Langsley said the Oklahoma case is an example of why she tells clients to file a confirmatory adoption for their own children.
“This cannot be emphasized enough,” said Langsley. “You have to do an adoption because some of the strongest case law we have is full faith and credit which is recognized everywhere, no matter what.”
Langsley was part of a group that pushed for the introduction of Marlo’s Law, which was signed in May 2022, to allow nonbiological parents in cases of assisted reproduction to adopt their child.
In cases with children, Gendelman said he asks a different set of questions for LGBTQ+ clients.
“It requires practitioners, including myself, to be much more open-minded about what a marriage relationship may look like,” explained Gendelman. “In representing LGBTQ people, I think we always have to ask ourselves a different set of questions.”
Those questions can include how a child was conceived, if there was an adoption and if there are more than two parental figures in their life. Gendelman said it’s not uncommon in LGBTQ+ families to have more than two parental figures involved in a child’s life, such as a sperm donor or biological mom.
In those cases, Gendelman said there aren’t many legal options to establish soft parental rights but a recent Colorado Supreme Court opinion could open new avenues to that. The June 2022 ruling In re. E.K. found that a stepfather who was a parental figure but didn’t have exclusive care of a child for six months could have standing to petition for allocation of parental responsibilities.
“It opens the door for those people to be able to file custody petitions,” said Gendelman, who added that while he hasn’t filed any based on the ruling yet, he might in the future.
Looking Forward
Looking into the future, Langsley said she has some concerns about LGBTQ+ family law. She said that while she sees Obergefell as a victory, she has trepidations for its future following Dobbs v. Jackson Women’s Health.
Langsley said Colorado lawmakers have in recent years protected LGBTQ+ rights, but she’s concerned about the future of family law for LGBTQ+ couples and families in other states.
“Nothing is carved in stone. And that’s what Dobbs has really taught us,” said Langsley who added presumptive parentage for LGBTQ+ couples that are married might not be enough to establish custody in other states. “We’ve got to remember that the word presumption is huge. And that in other states, those presumptions are being tossed out the window.”
After Dobbs was published, Gendelman said his firm received numerous calls from LGBTQ+ clients concerned about the future legality of their marriage. He doesn’t believe Obergerfell will be overturned, but added the legal protections of LGBTQ+ families in other states could change in the future.
“I’ll say that I’m not particularly concerned in Colorado, I don’t know that I would have the same answer in other states,” said Gendelman.
Gendelman said an emerging issue in his practice, particularly his CFI work, involves gender identity for children and adults.
He said increasingly Gen Z and Gen Alpha are rejecting traditional gender roles, norms and identities. In his CFI practice, Gendelman said he’s received a growing number of cases involving children who are gender expansive and courts and parents struggle with how to handle decisions around their care.
Gendelman also believes family law will look very different for coming generations.
“What does the family unit mean as we go forward?” he asked, adding that traditional heterosexual marriages were based on defined gender roles and norms but as those change, families will too. “I think it’s an interesting time in that we get to try to give some definition to the family unit, redefine the family unit and really question what it means or what it brings as it’s just being expanded and expanded and expanded.”