Alt Parenting #4: CA Coparenting Law with Ora Prochovnick
Decades of supporting California's alternative families
|Nov 12, 2018||2|
I heard about Ora Prochovnick because she helped some friends in San Francisco work out their coparenting contract. Prochovnick has been working in alternative family law for years, and has applied it in her own life: this picture shows her with her partner, Rena, and their kids.
Photo: Ora Prochovnick (bottom right), her partner Rena (bottom left), and their two children.
I’m grateful to Prochovnick for agreeing to talk with me about California law as it applies to alternative parenting, and about changes she’s seen in the decades she’s been practicing. Some things I learned from the interview:
• California is now the very first state to allow more than one legal parent. In fact, there’s no legal limit on the number of parents one can have.
• Prochovnick is seeing more people in her law practice “who wouldn’t normally identify with alternative culture or alternative sexuality,” and she’s also “seeing more men outside of traditional heterosexual coupled relationships interested in parenting.”
• (Note: I also recently spoke to a lawyer in New York who specializes in alternative family law, so keep an eye out for that interview if you’re interested in what it’s like out in New York!)
Read on to learn more…
This interview is part of Lydia Laurenson’s Alternative Parenting Project.
LYDIA: I found you because you helped some friends of mine write their coparenting contract. But I understand that you don’t just have legal experience — you also have personal experience with alternative parenting from the queer perspective. And you’re also on the board at Our Family Coalition, in San Francisco, and have a broader role in the community.
ORA PROCHOVNICK: Yes. I have been working to create and protect families as a lawyer for over 30 years, primarily with LGBTQ families, but also with a variety of other family constellations. I myself am a parent as well. Our kids are pretty old now — they're twenty-four and twenty-eight. My partner and I raised them in a collective household; we are the primary parents, and there were other members of our household involved in raising our kids.
Separate from my everyday legal work with families, I have a strong interest in housing law. I’m a property professor and I run a housing clinic.
Has all that been in San Francisco?
It has. Although… thirty years ago, I was not a parent, but I lived in a collective household in St. Louis, Missouri that had children. That was after I went through college. I still have a relationship with those kids! Some are now parents themselves.
Do you have a sense of whether alternative parenting is on an upward trend?
Anything I could say would be completely anecdotal, because it's not something I've done any research on. And I do think that the LGBTQ community has always been more creative than the mainstream, in defining what family is for us.
I can think of families I worked with, long ago — including one family I was just catching up with recently, whose child is now in her mid-thirties and has children of her own. Her parents were both lesbians, but they were not in a relationship with each other.
That’s been very common in the lesbian community, parenting outside the sexual relationship. There's an assumption that if you see two lesbian moms together, they're in a relationship, but that’s not always true.
What might be newer is that it’s moving more into the polyamory community. I would say, from my practice, that there are more populations exploring different ways to create family and be parents.
Sometimes I think the straight community is catching up! I’m seeing more people in my law practice who wouldn’t normally identify with alternative culture or alternative sexuality. People who otherwise would be perceived as straight, who are more open to a different understanding of family.
I'm also seeing more men outside of traditional heterosexual coupled relationships interested in parenting.
What did it look like when you started?
When I look back over the 30+ years I've been doing this, there was a time that it was either lesbian couples or heterosexual couples. Back then, there were also occasionally some who did it in less traditional constellations of three or four, maybe two women and a man, or two men and a woman. There were also much fewer legal protections back then.
How does polyamory and heterosexuality intersect with the people you're seeing today?
Some of the clients I work with in intentional families are doing it within polyamorous relationships. And some of my clients are completely divorcing their desire to parent from their sexuality. On that note, I've worked with people who define themselves as asexual.
I've also seen exes choose to be family together. I’ve seen that more often with queers, but also with straights.
One thing I’ve been curious about is how different racial minorities are engaging with alternative parenting. As I'm sure you know, it can be complicated to talk about sexuality in different racial groups.
A lot of the “standard” alternative lifestyles — by which I mean the “famous” sexuality-related subcultures, like polyamory or swinging — are largely white. That doesn't mean there aren’t people outside those cultures who engage in those practices, but a lot of the time, those folks aren’t part of those subcultures. A lot of the time, there’s different vocabulary and even different norms for people who do it outside the subcultures. So that can make it hard to track what’s happening in those groups.
Completely agree. For instance, in the African-American community, and in a lot of Native American communities, the whole concept of extended family has long been more present. It’s not, like, a new innovation, or pushback against the nuclear family. There’s more of a sense already that the whole community is involved in nurturing and loving a child. So, given that there’s already a more expanded definition of parenting, it feels more natural and therefore less countercultural.
But when white folks do it, it feels more like countercultural activity.
One thing I've observed in my community in San Francisco, among people who are interested in alternative parenting, is that a lot of the people drawn to these ideas grew up internationally. Maybe they grew up in Eastern Europe, maybe in India, but they’re saying things like, “I just can’t imagine doing this nuclear family thing the way Americans do it, it just seems so hard based on my experience from my birth culture.”
What are some of the biggest challenges you’ve seen California coparents work through, in your legal work?
I would say one challenge is having the conversations at all, so they’re all on the same page. One of the things I do is help people create coparenting agreements, and I always tell them, “You know, you could pay me a bunch of money to write a contract, but it’s more meaningful if you create the agreement and I help you to turn it into legal form.” I encourage people to have a lot of “what if?” conversations with each other, to develop a shared vision and picture of what exactly they want to do together.
It's not like there are right or wrong ways to do this. But it's really important that all the participants have a shared understanding of what coparenting means to them. The most important thing is that they have a foundation of trust and understanding. That will then be layered with the legal relationships, or lack thereof.
There are some legal overlaps with that — as a society, we have very clear legal definitions of what it means to parent, the rights and obligations attached to a parent as opposed to a non-parent. So people who are defying those rules, and having non-parents take on some of those rights and responsibilities but not necessarily all of them, just need to figure out what they want from that package. There also might be legal differences of people's status that would cause power imbalances over time.
For example, until very recently, in California, you could only have two legal parents. That’s changed recently, but the change is new — cutting-edge, brand new.
Prior to that, people who worked in this area of law had to explain to our clients that you could have two legal parents, and everybody else who's going to be involved in raising the child or being in any sort of bonded emotional relationship could not have legal rights or obligations. That could put the parents who don’t have legal status at great risk to the whims of a legal parent, and/or the bio-parent’s family — such as grandparents.
And the risk went the other way as well! For example, I’ve seen legal parents who have been stuck holding the bag on child support. So, if a child turned out to be more expensive than anticipated, perhaps because of an illness or disability, sometimes the non-legal parents would disappear. One of the sad things about being a lawyer is you see awful, horrible things happen when relationships don't work out.
Because of the lack of legal support for multiple parents, I also saw some really unusual arrangements to work out these power relationships. For example, using business relationships! I’ve seen people literally create a Limited Liability Corporation (LLC) to represent the family, to legally entwine the adults with each other. Some people find that too cold and unappealing, but it is a tool that can be used for this.
Wow! I have a friend who jokes about how she sees marriage as an LLC for raising children. But I never would have thought of actually, you know, doing that.
As a property professor, I completely agree with your friend’s analysis. Marriage is a property relationship. It's not about love and romance, it’s about property.
Incidentally, I say that as somebody who finds herself married when I never thought I would be. My partner and I have been together 36 years, so we were allowed to marry pretty late into it, and I still have to remember that we're married sometimes.
Tell me more about the new legislation in California that allows more than two parents. What sort of impact have you observed?
I have long been a proponent of this legislation. I did legal third-parent adoptions way before there was a statute that said you could. So I'm a big fan. I mean, God forbid that you should have too many people loving and nurturing a child, like that's a bad thing!
Yet even though it seems preposterous to ban people from caring for children, there was great reluctance to adopt this legislation, and it's because those in the legal system see the biggest downside: breakups.
In a breakup with more than two parents, the potential for problems is geometrically increased. Two people fighting, versus four people fighting, does not add up to twice as many problems — it’s a lot more than 2x the problems.
Before you could do adoptions, you did other things to get legal protection. Some of those kids are now adults and are contemplating doing adult adoptions, and they’ve turned out fine. But some of those families had breakups, and they really saw the downside. How do you handle custody and visitation and child support with four people? The answer is that you’re creative and you come up with new formulas, but it helps if those four people are cooperating with each other. The fights get uglier, and much more severe, each time you add another person to the mix.
Another interesting issue, now that there can be multiple legal parental relationships beyond the traditional two, is that people are sometimes related in a legal way to their child… without having a legal relationship to each other. That can create an interesting dynamic.
For instance, if you're talking about a polyamorous family, our legal system does not recognize three people being in a legal marital relationship with each other.
So sometimes, in those relationships, they choose to have two of them married to each other for various reasons — sometimes the tax law can be favorable, for instance — but that can create emotional imbalances, depending on which two are married and which one's not, and how emotionally triggering that is.
Or the group could choose that none of them have that legal relationship to each other, and yet they're all legally connected to a child, but that can come with legal and emotional downsides.
There’s a meta question here, which is: “What relationships are validated by our society, and which relationships aren’t?” It sounds simple, but crucially important things can stem from that. What happens if somebody in the family dies without a will? Where does the property go? Who gets Social Security payments, and who doesn’t? And all those questions are connected to emotional issues, not just legal issues.
And then there’s just general questions about who is recognized and who is validated. What do you say when you attend a party and bring your partners? How do you introduce them?
Yeah, I think one thing you learn when you’re not monogamous is that party behavior can be just as important as any other “more serious” behavior.
How is the new multi-parent legislation worded? Is the language very precise, or broad?
The legislation is very clear. It just says you can have more than two legal parents. I have seen few people do more than four parents, but now families can continue to push that edge and see how far it goes.
In addition to that, California already had an expansive definition of what it means to be a parent. It’s different from a lot of other states. There's a lot of case law and statutory language that focuses on intentionality — the intent to parent.
The default is that, if you're biologically related to a child — either because you are the gestational parent, or a genetic parent who contributed sperm or eggs — then you are legally the parent of the child. That’s the default. Exceptions have come from assisted reproductive technologies like surrogates, who charge money to carry non-biological children. Then there’s egg donors, and sperm donors. Those exceptions recognize that you could be somebody whom one would normally assume to be a legal parent because you are genetically or biologically connected, but that you aren’t, because of intent: somebody else is the intended parent.
So there is really solid law that recognizes that I could be in a non-marital relationship with the birth parent, and not be the biological parent myself, and from day one have intended to parent. And legally, all concerned share that intent.
From the perspective of the child, I think that's invaluable. The child knows emotionally that the parents who love and nurture them formed an intentional connection.
Is California the only state with legislation like this?
I'm aware of a very old third parent adoption from Alaska. Late 80s, early 90s. I think Alaska was the first. And there were some in Washington State. They had some fairly unique facts.
I don't think any other state currently has followed California's lead in terms of allowing multiple parents with such a broad law, but there are places where it’s easier and harder to work around it depending on the legal environment.
Do you have any idea what sort of interest there might be in other areas of the country?
I'm involved with some national organizations — there’s a group called the Family Law Institute that convenes every year to share information from different jurisdictions. There’s absolutely a lot of interest nationwide on expanding parenting protections to non-traditionally-recognized relationships.
Washington, D.C. is actually amazingly progressive in that area. They were one of the first to recognize intentional parenting in the same way California now does.
Are there differences between America’s rural versus urban areas on this?
I think there are more people in cities who have power and access to get legal rights and protections. So the examples I hear about are in urban areas more often than not. But that doesn't mean it's not happening in other places, just that people in cities are more likely to actively work towards legal protection.
Do you have any observations in your practice about how cohousing is involved in the legal agreements people make?
I have a special interest in this — as I said, I’m a property professor and I run a housing clinic. I see a wide variety of approaches for people’s housing situations.
Of course, part of the challenge now is just how expensive housing has become in the Bay Area. There’s a clear class divide on who can live together in a pre-planned way. If you’re a renter, you have many fewer options about being able to get places next to somebody else.
Aside from that — in general, I think there's different degrees of entanglement or independence for alternative families. I’ve seen a huge range, from a group getting one house together, to two people getting a duplex and one living upstairs and the other downstairs, to people living in separate but nearby homes.
Regarding cohousing or co-ops specifically, many cohousing spaces contain queer families, because many of those families are attracted to outside-the-norm housing setups. Cohousing and coparenting don’t necessarily go hand in hand, but I do think people who are attracted to cohousing are likely to also be people who are engaging in these types of family creation work. There's some correlation.
If you're setting up housing, you could do it as condominium, as a co-op, as tenants in common… There's different ways in terms of legal structure. But, like parenting, the legal structure ideally mirrors the intention of the social structure. Do you want to have shared meals, do you always eat separately? Do you have common space, perhaps a common dining room? Do you know what you want to be your common area and separate area? And if there are kids involved, how much do you overlap in terms of caring for the kids?
There's what I call the kibbutz model — some people try to replicate this idea of the Israeli collective community, the kibbutz, where the kids are considered everyone’s responsibility and the group raises them together. I’ve seen that type of community less, though. And it’s quite different from what you and I were talking about earlier, where you have a family that's created with a small, designated group of people. I've definitely seen both, and for the second category, housing tends to take more of a form where people have independent, unique houses and help each other occasionally. So that’s what I mean by different degrees of entwinement and interdependence.
Ora Prochovnick is the Director of Clinical and Internship Programs for the College of Law at John F. Kennedy University in the Bay Area. She is also on the Emeritus Board at Our Family Coalition, an organization dedicated to advancing equity for lesbian, gay, bisexual, transgender, and queer (LGBTQ) families with children through support, education, and advocacy.
This interview is part of Lydia Laurenson’s Alternative Parenting Project.