167 - Polyamory and the Law

Full transcript available

On this episode of the Multiamory podcast we’re at the first annual Southwest Love Fest in Tucson, Arizona speaking with lawyer Jonathan Lane, who specializes in family and immigration law for the polyamorous, kinky, and LGBTQ communities

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Transcript

This document may contain small transcription errors. If you find one please let us know at info@multiamory.com and we will fix it ASAP.

Emily: We have an exciting announcement for all of you, tickets for our 2018 tour, are on sale.

Dedeker: Hey, so exciting. If you need more information about that and if you want to purchase some tickets, you can go to multiamory.com/events.

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Emily: If you're happy with the same old ways of dating.

Dedeker:  If you enjoy sucking at communication?

Jase:  You have no desire to improve your romantic life then our podcast might not be for you.

Dedeker: If you want some out of the box ideas to deepen your current relationships.

Emily: Broaden your sexual horizons.

Dedeker:  Develop a better understanding of yourself.

Emily: Or learn more about non-monogamy.

Jase: Then, you've come to the right place. I'm Jase.

Emily: I'm Emily.

Dedeker: I'm Dedeker.

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[music]

Jase: On this episode of the Multiamory podcast, we're at the first annual Southwest Love Fest in Tucson, Arizona. Speaking with lawyer Jonathan Lane, who specializes in family law for the polyamorous, kinky, and LGBTQ communities? First of all, we're here at Southwest Love Fest.

Emily: Yes, so happy to be in Tucson.

Dedeker: I'm so sweaty, to be in Tucson.

Jase: It is a warm place to be, it sure is.

Emily: Indeed it does.

Jase: We've been having a great time, we've given one of our talks so far, and we're doing another one tomorrow about relationship anarchy, which should be exciting.

Dedeker: Note, a lot of Multiamory fans, which has been really sweet.

Emily: Yes, thank you everyone.

Dedeker: Actually right before we recorded this, a Multiamory fan, bought us a bunch of drinks in the bar.

Jase: Yes, buy a bunch of drinks, she means one round of drinks.

Dedeker: They bought us a round of drinks. This individual bought many drinks, for each of us.

Jase: That's true. Also for Dr. Elisabeth Sheff and Ruby Bouie Johnson's here. There’s a bunch of people here, who've either been on our show before like Kevin Patterson's here. It's really cool, to get to see all these people. Many of whom, we haven't seen in person before, which is really cool.

Emily: Big honors, so glad to be here and with that, let's get into it.

Jase: Let's get into this. In this episode, we're talking about advice from a lawyer. We did this a while ago with Diana Adams, talking mostly about family law. We're going to talk about-- mostly custody. We're going to talk about some other nuisances that have to do with marriage and family law. Things like immigration, different ways that divorces can go, getting fired from jobs, stuff like that, which is really cool. You want to get into it?

Emily: Let's do it.

Jase: Let's do it.

Dedeker: We are here, at our hotel room, at the Southwest Love Fest in Tucson Arizona, and we have invited Jonathan Lane, to come to our hotel room with us, not for anything sketchy-

Emily: Who had an awesome presentation; he had an awesome presentation of himself.

Dedeker: - but to talk to us. Jonathan, can you tell us little bit more about who you are and what is it you do?

Jonathan Lane: I'm an attorney at JD Lane law and my practice focuses primarily on family law including, divorce, child custody, protections for nontraditional families and changes of name and gender. My practice emphasizes sexually diverse communities including: the polyamorous, kinky and LGBTQ. I'm licensed in the District of Columbia and Maryland and I have an inactive license in California.

Jase: Okay, because you’re from California.

Jonathan: I'm actually from Tucson.

Emily: He's from here. Like me, we are the same-

Jase: You're the same person.

Emily: - in that way.

Jonathan: Okay, great.

Dedeker: How long have you been practicing law within the polyamorous community?

Jonathan: It's been about a year and a half, since I decided that there was this need. Basically, most of these issues are issues of state law and you basically need a lawyer, who is licensed in your state. Diana Adams is the pioneer of this field, but she's only licensed in New York.

Emily: You are the up and coming 'Diana Adams', so it's okay.

Dedeker: You're the next Diana Adams.

Emily: You're the next generation of Diana.

Jonathan: That is quite a compliment, we'll see.

Dedeker: Basically, to get a lot of our listeners in the way that this episode came to be is that after we finished our presentations, we all went out for a drink. In the hotel, we all sat down, and started talking about the stuff that Jonathan does. Jonathan, you mentioned specifically that you also work particularly in immigration cases and how they relate to polyamory. Can you tell us a little bit more about your work doing that?

Jonathan: Yes, I have a background in Immigration Law, actually from working with special immigrant juveniles, from Central America. I started doing those cases Pro bono, six or seven years ago. I've worked with about seven children on those cases. When I realized that there was a need for the legal services among the polyamorous, that included immigration, I was getting questions about immigration.

There's a couple of different big areas, the first is that the distinction between polyamory and polygamy is very important in immigration context.

Emily: Do people not automatically know the difference between those two things, just when you get into a legal situation or in front of a judge?

Jonathan: A lot of times, people hear that if you're a polygamist, then you can't become a US citizen and they worry, "Oh, if I'm poly, does that mean that I'm not going to be able to become a US citizen?"

Dedeker: I'm actually going to put a pin in that really quick, because that was something we want to talk about more. I had no idea that if you're polygamous or if you're married to multiple people, then you're barred from becoming a US citizen, I had no idea.

Jase: Can you tell us what is the detail of that?

Emily: What's the deal?

Jonathan: It is part of the Bosom Regulations, of who can become a citizen of United States, are that you have to have good moral character. It was decided, at some point that being a polygamous, means that you, by definition, do not have good moral character, if you have multiple spouses?

Dedeker: I wonder if that was-- I know that-- it was the turn of the century, when a lot of the bigamy--Or it is earlier than the turn of the century, when a lot of the bigamy laws were getting on the books. That was part of a big push back, against what the Mormons were doing and things like that. I wonder, if that's a product of that time as well, of deciding that we don't want to let anyone in, who is promoting what we see as bigamy, essentially.

Jonathan: It's a good question. Basically, all US immigration law comes from 1924 to the present. Before that, there was the Chinese Exclusion Act and stuff like that. Most people could just show up.

Jase: Which is how most of our families got here; we just did those DNA tests, so we've been talking about this a lot.

Emily: Talking about 23andme ancestry.com.

Dedeker: I see. That's on the books, that if you're polygamous, which obviously is something that comes up mostly, for coming from predominantly Muslim country or culture, where having multiple wives maybe as more acceptable. If that's on the books that you can't become a citizen if you're practicing polygamy in some way.

It seems like in your situation that you're getting clients for polyamorous and maybe someone who's immigrating is marrying someone who's a US citizen and they're both have consensually non-monogamous relationship. That there is the concern of like, "Is this going to have any repercussions?"

Jonathan: Will it disqualify me?

Dedeker: Will it disqualify me for being able to immigrate, essentially through marriage.

Jonathan: Exactly. The short answer to that is no.

Jase: Great.

Emily: [unintelligible 00:08:25] well done.

Jonathan: It's always worth consulting with an immigration attorney, for your particular situation. The government does do an investigation into the marriages of people who claim immigration benefits, on the basis of marriage. They want to make sure that this is a legitimate romantic relationship and this isn't something that is being done just as a pretext, to get that immigration benefit.

An employee of the government, will ask a lot of questions, they may take affidavits where people say, "I know this people and this is where I've seen them socially and this is the context of their relationship," and sort of vouching. You can also show evidence of pictures and lots of examples of things that when you're in a romantic relationship with someone, you will accumulate a lot of evidence of the time, you've spent together.

Emily: It definitely helps to have a lawyer, who knows something about polyamory because if you don't, then that might be really big challenge for the people, who are trying to become immigrants of this country.

Jonathan: Exactly. A lot of people don't know what polyamory is and they may just get scared away. Immigration lawyers obviously, know about this

polygamy thing. They may just get freaked out like, "This is going to be a big problem or real concern." You just have to be careful, as you navigate the process, in terms of how you present yourself and your relationship.

Dedeker: Well, when you talk about that; about being careful when navigating the process, what can you practically advise people to do? What counts as careful? Is careful like continue to practice multiple relationships but make sure that you erase all evidence of ever being with any other partner on social media? Or is that okay, it's just that the government wants to focus on making sure that this particular marriage is valid? What are the things that people can or can't do, if they're trying to mitigate the risk of not being able to immigrate?

Jonathan: Well, you don't want to advertise that you're having sex with other people. That will raise some concerns for a person in the government but that isn't really their business. They're really there to figure out if your relationship is legitimate. Similarly, on Facebook, it's not common for people to say on Facebook, "This is someone who I'm having sex with. Look at this picture of us." It's just, "Here's someone I'm spending time with. Here's a picture of me with someone else, I'm spending time with."

Those people, one of them could be a spouse or a prospective spouse, one could just be a friend, it doesn't really matter.

Dedeker: It's kind of about passing.

Jonathan: Right. Basically, you want to clear evidence that you have this substantial relationship with another person. If you didn't have pictures, with the person that you married or are planning to marry and you had lots of pictures with another partner, that would stand out and be really weird. On the other hand, if you have pictures with one person, who is the person that you've married or are going to marry and pictures with another person, who happens to be a partner, they could just as easily be a close friend.

Dedeker: Well, here's my question though because I was--

Emily: I have a question too.

Dedeker: I try to think about it from my own life. I think about, okay, so some day, if I married somebody, in order to immigrate or whatever and like my personal life-- obviously, this isn't applicable to everyone, but my personal life is like on my Instagram, I post specifically, "I'm celebrating my anniversary with this particular partner." Then two months later, "I'm celebrating my anniversary with this particular partner." I know there's some people who are polyamorous, who are fine to post like kissy pictures with multiple partners.

When it starts getting beyond that like it could be a friend, could be closer, we don't know, when it gets beyond that point, is that something that people should avoid doing or is that something that technically, even though that's happening, the government can't do anything because it's really not their business, as long as this particular relationship is valid. Sorry, I keep trying to like make it more complicated but--

Jonathan: Well, I'd say that it's worth being careful. You don't want to put things that really encourage those questions because the more that someone from the government notices something and they're asking questions, even if it may come to nothing, it will just cause you problems and cause you stress. If you are in that particular situation, then I would probably be careful about overtly sexual or romantic photos with other partners.

Emily: Okay, mine's about you just posting, # boyfriend, #girlfriend, that sort of stuff. It sounds like it would be the similar answer of-- it's just hard to say. Tell me if I'm right here, but what I'm getting from you is that, there isn't really a hard and fast and it's not like they see something like that and automatically you are disqualified because it's not illegal to do. That it's more, you just don't want them to ask more questions, than they need to or you don't want them to have anything to doubt.

Jonathan: Exactly, if they are looking into social media accounts, you want it to be reasonably straightforward. Having photos with multiple people is normal.

Emily: All right, I get a sense for that. We want to move on to the next thing which you talked about in your presentation, which is about prenups for marriage. What we're wondering about, is like what are specific tips for people who are getting married but who are polyamorous or in some other non-monogamous relationship. Like what are some things that a normal like prenup lawyer might not even think of, or things like that.

Jonathan: Well, probably the best example of that is, issues related to the maintenance of monogamy. Sometimes prenups will-- Prenups mostly focus on finances, in the case of a divorce. Sometimes, they say, "If there is a divorce and if there is a certain cause or if X happens, then you get this certain amount of money," so on. Sometimes that can be related to sex and like infidelity. If this person has some sexual contact outside of the marriage, then therefore, they are responsible for a certain additional amount of money, like a penalty

Dedeker: Gosh, I can't even imagine having that conversation, is it standard in a prenup to include like an infidelity clause?

Jonathan: It makes sense because it's probably a reason for people to be divorced.

Dedeker: I get it though, but is that like everyone does that or.

Jonathan: It's not routine but it certainly is something that happens. A lot of the prenups are really-- It's up to the people, who are preparing them and the couple to decide what arrangements they want. Basically, as long as they have made proper disclosures and everyone is properly represented then it should hold up.

Dedeker: That's just so fascinating to me. I'm very pro-prenup, personally. I'm not married and I'm not planning on getting married, but I'm very pro-prenup. I know some people think it's like very non-romantic or like a little bit too-- I don't know.

Jase: It's pragmatic.

Dedeker: Right, it's very pragmatic, maybe too pragmatic, according to some people. I just can't even imagine having that conversation, where you're trying to figure out what's the dollar amount assigned to you cheating on me.

Jonathan: How much is an affair worth.

Dedeker: How much is an affair worth.

Jase: How much is your affair worth, yes, interesting?

Jonathan: The thing that I think about prenups in the possible perverse incent is divorce sucks. It's very traumatic and you have to be really motivated, to get a divorce. The idea that having worked out these financial things in advance is going to make you go ahead and divorce, you're probably going to do it anyways.

Emily: lf you're at the point where you're going to get divorced, you're just going to do it anyway, whether you have a prenup or not.

Jonathan: The marginal case, where you wouldn't get divorced except that you already have this prenup that makes it harder doesn't actually make a lot of sense.

Dedeker: Interesting, yes, you that’s true.

Jase: That's a good point.

Emily: Well, speaking of divorce, you talked about divorce in your talk today. Specifically, like dissolving marriages and handling divorce. How do you do that within consensually non-monogamous couples and what does divorce look like? You talked about like four different ways in which things can pan out.

Jonathan: Exactly. There are four different ways that you can proceed with divorce. First two, are relatively obvious. One is, you don't hire a lawyer, just the two people agree on all the issues and then they just file things with the court, to make that legally binding.

Jase: Is that like a checklist of all the things you have to agree on or do you just have to come up with it yourself?

Dedeker: We're divorced now, done.

Jonathan: There are basic forms that are available in probably every state.

Dedeker: To figure out how you're going to split up everything, assets and things like that.

Jonathan: Yes. Millions of people get divorced each year, and a high percentage of them, don't have lawyers and a lot of them don't have significant assets. Sometimes actually, you're dealing with how to split up their debts.

Emily: The media would tell you otherwise. I'm like everyone who gets divorced has a lawyer.

Jonathan: Yes, it seem that way. They also tell you that everyone who's getting married, that the average wedding is $30,000 and clearly when the median income is 50-something dollars in a year. For people, at marrying age that's not actually the median of what people spend.

Dedeker: That is for actually-- so, I wanted to jump on that, because that is so funny about how the media distorts your perception of it. I was just having a conversation--

Jonathan: Like Kramer vs Kramer, and like everybody--

Dedeker: I was just having a conversation with my sister actually, about the cost for a wedding dress. She told me what it was, and I was like, "What, it was that cheap." She was like, "Oh, that was expensive." I was like-- because the media, makes me think that everyone spends $5,000 on their wedding dress or at least

a couple grand. That was what I thought. I thought everyone budgeted a couple of grand.

Jase: My wife spent about a thousand dollars, and I winced a little bit.

Jonathan: What did she spend on the dress?

Dedeker: I just think that's fascinating.I don’t know if she wants me to tell, not thousands of dollars, but it is a beautiful dress, but this is not what this podcast is about. That was the one, you were going through a list of four.

Jonathan: As I was saying, doing it yourself can make sense when partners have similar earnings and limited assets and there is no kids, and then it can work and it certainly saves some money. I've had clients who I've worked with who were going about that process and just had a few questions about just how to make it run smoothly, I just worked with them, just very briefly on that.

The other extreme is for each party to hire a lawyer and for each of those lawyers to prepare to go to court, to have those issues decided by a judge, through a trial. Usually along the way, there's a settlement but there are a lot of legal fees typically up, even if you don’t get to an actual trial. There's a lot of reasons to try to avoid the trial process if you can. Poly people are even more unlikely than others, to want a judge, to be making judgments about their marriage.

Dedeker: Well, it's interesting and I'm really encouraged to hear about the really simple version of doing this, because we've encountered a number of people who identify as polyamorous, who are married, who maybe decide, they don't want to be married anymore, not that that's the end of the relationship, like they still want to be in a relationship together, it's just that they don't want legal marriage anymore or maybe they want to be able to legally marry someone else, in order for someone to have health insurance or for different parenting rights or whatever.

Jonathan: Or immigration, like we're talking about before.

Dedeker: Right, but I've seen a lot of people who are like, "Well, we think that we want to dissolve our marriage but all that we see in the media, is like these horrible long divorce proceedings. That seems awful, when it's like we just want to just be able to split this up, just that we can restructure our relationship, in a little bit of a different way. In a way that we want, to hear about that.

That also does make sense, that if it is looking more like a traditional divorce, that having a possibly more traditional judge be the one deciding what the value is of what in your relationship, in your very non-traditional relationship. Then, maybe some people wouldn't want to really want to go through that.

Jase: It sounds like that's on one extreme.

Jonathan: Exactly, those are the extremes in terms of how complicated it is and how expensive it is. Then, there's two other things that are in between those two. One is mediation, in which a neutral mediator works with both parties, to identify the relevant issues and talk through those issues. Then work to come to an agreement on those issues.

Obviously, this is not easy, but it does usually work. I'm a trained divorce mediator, not all mediators are lawyers. There are some excellent mediators, who are not lawyers. If you work with a mediator, who is a lawyer, that person can then write up the agreement between the parties, as a contract, which then can be basically submitted to the judge with the paperwork.

Emily: It sounds like this option is like option number one, where you settle it yourselves, you're just having someone help you do that, guiding you through that process.

Jonathan: In a way, yes, you're coming to a settlement and really-- The last option, I'll cover is another way of reaching a settlement and that's the collaborative process, which is a voluntary dispute resolution process in which you settle without resort to litigation, but each side has a lawyer. It's a very different dynamic to be working with, as a lawyer. It's much more cooperative but each lawyer is working for the client's best interest.

The way it works, is that basically all the information that's relevant and like should be part of the decision making about how money should get settled or what should happen with child custody, if that's an issue, all that information is voluntarily disclosed. Then, the parties agree to use good faith efforts in their negotiation; to reach a settlement like you would in a mediation, but each party has a lawyer.

The interesting thing about this process is that when you start this process, you sign an agreement that says, "If you leave the process and file a lawsuit, then your lawyer will no longer be your lawyer." You have to get a different lawyer to represent you in the lawsuit. It changes the dynamics because you have a lawyer who's really just working on a settlement and you're motivated for a settlement.

Divorce trials can make a lot of money, so with this way keeping things in the process; it encourages both the client and the lawyer, to do whatever they can to come to an agreement. I should note that the process also has opportunities to involve mental health and financial professionals, because divorce is not just a legal proceeding but it's an emotional proceeding and a financial proceeding.

Dedeker: We're going to take a quick break, to talk about the best ways that you can support this show. If you've been enjoying what you've been listening to so far, if you've gotten a lot of information or deep insights out of listening to our show and you really appreciate it, there's a couple of things that you can do, to help support us, so that we can keep this show running.

The first one, and the most current and relevant one, is when this episode comes out, we will be currently on our national tour. Basically, if you're in Chicago, Dallas, San Francisco, Portland, Seattle or if you're close to Boise, you can get tickets to come see us. All the shows that I listed, you can go to multiamory.com/events to get tickets for those shows. They are selling all ready, so please buy them as soon as possible, to get your spot.

Then in Boise, we're going to be presenting at RelateCon. Presenting are some of the same stuff that we've been talking about here at Southwest Love Fest and it's really exciting, so you can go to relatecon.org I believe.

Jase: It’s also linked on our site, so if you just go to multiamory.com/events that's listed as one of our events, so you can go check it out there and see us at that.

Emily: The second way that you can support our show is to become a member of our Patreon community. We have a really incredible community of listeners and fans and people that are all like minded. If you become a Patreon at the $5 level, then you can become a member of our private Facebook group. In there, it's really great because there's a lot of amazing people on there.

You can comment, you can share different stories, maybe things that are going on in your life and get some great advice from a bunch of like minded community members. In addition at $7 level, you don't have to listen to us babble on about all these ads. You get ad-free episodes and then also, finally at the $9 level and the $15 level, you get access to monthly video discussion groups.

Also, if you're at the five and above level, you get a discount off of our tour, so that's a really big incentive to go and become a Patreon of ours. Again, go to patreon.com/ Multiamory and become a Patreon today

Jase: Last but not least, is if you get something out of this show and you haven't done it yet, is to take a moment to write us a review on iTunes or on Stitcher. A lot of podcasts mention this, but this is something that is incredibly helpful because it helps us show up higher in search results. It also makes people more likely to give the show a chance, if they've come across it and they're considering listening to it.

They get to see that you've rated it highly and they get to understand what it is that you get out of the show. That this, is especially helpful full for podcasts like this, where we are trying to spread awareness for something that a lot of people don't know that much about or maybe are afraid to start learning about.

Your reviews, really do make a difference, not just for us, in feeling good but also in the world, in general, by getting more people to see enough that's like, "Okay, I can learn about this whether I'm monogamists or polyamorous or in different types of relationships." Because they get to see, what it was, that you got out of this show. With that, thank you so much for the reviews that you write and let's get back into this interview.

Dedeker: You were telling us a story, a little bit earlier about handling a divorce for a couple that was consensually non-monogamous. It was more of a traditional divorce like they weren't going to be in a relationship with each other but they were consensually non-monogamous. That was something that you had to disclose to the other lawyer.

Jonathan: Yes, what happened is, I knew that my client was poly and that they had been poly throughout their relationship. I don't think it had come up with the other side and his lawyer. The other lawyer sent me a set of questions, called the interrogatories that within 30 days, we had to respond to. Typed out these are our answers to these questions sworn under oath.

Most of them were things about money, things like

what are your credit card accounts? What are the balances? What are your checking accounts? All these financial stuff, then towards the end, there was the following: state whether you have had sexual relationships with any person other than your spouse, since the date of your marriage to your spouse, and if so, state the names, addresses and telephone numbers of each such persons, the date of sexual relations and the place of sexual relations.

Jase: Here's my 50 page document.

Emily: I wrote it in my diary, every single time it happens.

Jonathan: It just doesn't make any sense in poly context. You have to respond under oath to these questions. This is actually not that unusual a question. This is probably, one that this lawyer--

Jase: It sounds so weird, to us.

Jonathan: This is a very experienced lawyer, on the other side. He probably puts that in, for every case. You can imagine that having this question could create some awkward conversations between an attorney and a client. In my case, I knew that the client was poly and was comfortable with that, so I had no hesitation objecting the question. I wrote back that they were consensually non-monogamous throughout their marriage, and therefore the details of any sexual relations with other persons is not relevant to this case.

Dedeker: That was fine?

Jonathan: So far.

Dedeker: So far? Okay. I can't even imagine, if I was someone who's poly and I'm trying to go through a divorce and I just hire a lawyer who's not familiar with what's going on. Then, suddenly having to fill that question, I imagine being much more difficult in that scenario.

Jonathan: You may not even be thinking about poly. Poly is not generally the reason that people are divorcing, so people don't even think that it's going to be relevant. Then someone says, "Hey, list everyone that you've had sex with, where you've had sex with them and when you had sex with them." It's really out of left field and not a question that most people expect to have with their lawyer.

Emily: Yes, seriously, I could see that being a very awkward conversation.

Dedeker: Yes, gosh, my goodness. We're going to turn the corner a little bit here, away from just talking about marriage and divorce. We were curious about, have you seen any progress at all, as far as securing any employment protections for polyamorous people or people who are in non-traditional relationships?

Jonathan: There is an early movement to start trying to get protections at the city level, in cities around the country. There's some efforts in California, as well as on the East Coast, to start to try to lobby city councils to add non-monogamy to the categories that they protect, that basically you can't be fired for that reason.

Emily: This within like city jurisdiction?

Jonathan: Exactly, exactly. We're not at the point where any states have tackled it. We're just at the point where first few cities looking into it. Maybe in five years, if we have 50 cities that have done it, maybe we'll get some States that will do it. I'd certainly imagine, in many states it's still legal to fire someone for being gay.

Emily: Is that still? I was under the impression that was a federal protection but that's just on the State level?

Jonathan: There has not been a federal protection passed, and so it's a matter of State Law.

Jase: Okay, I didn't know that. That's really a tow down.

Dedeker: Now, we know that, now everyone knows that and we got to change that.

Jonathan: Yes.

Jase: Yes.

Emily: Wow, Interesting.

Dedeker: That is good for people to know though, of starting on the city level that maybe seems a little bit less intimidating than-- because I feel like when these discussions come up about marriage rights for people who are non-monogamous, or employment rights, or child custody rights, everyone immediately goes to like, "How do we get this to the Supreme Court?", which just feels like such a huge task. The idea of knowing that this can start at the city level and that's how we can get these things to snowball, is actually encouraging, a little daunting but it's also encouraging.

Jonathan: Absolutely, a lot of cities, two or three years down the line, there can be a movement. Maybe, we'll have cities around the country that start to have those protections.

Jase: Yes, that would be really cool.

Emily: At the moment, I don't know how much you know about the center you work mostly in-in family law, but is there anything that someone could do if there were fired because their boss found out they were polyamorous and thought that was gross and fired them or are you pretty much, SOL at this point?

Jonathan: Well, for most people, in most jobs, in most States, employment is at will, which basically, if as long as there are not a few specifically listed things that are the reasons why you were fired, then you can be fired. Being fired on the basis of race and gender are obviously examples of those. In some States, in some cities, being gay is also included in that but so this similarly being polyamorous is something that could be added to that, but it hasn't been. Sexual orientation has been defined as being gay, straight or bisexual.

Emily: Right, have a lot of cases come through your office, related to that because I know a lot of people worry about it. They worry about coming out, as being polyamorous, for fear of losing their job or some other repercussions like that. In your personal experience, have you seen that there's a lot of that or do people maybe worry about that more than it actually happens?

Jonathan: I had one case where someone wanted to talk to me about that they were hearing from their employer, that they were probably going to be let go. It was not related to poly but to kink and there were some other additional issues, but basically there wasn't much that could be done. Everyone's situation is different, but most people shouldn't freak out about the risk. The risk is still probably quite low, considering how many people are non-monogamous, in an unethical framework and how rare it is to have any work consequences from that.

I just did a brief consultation with this person, who was on an emergency basis because they needed to know, and I didn't know of a poly friendly employment lawyer, who I could get them in touch with quickly.

Jase: If you're out there listening, an employment lawyer whose poly friendly, get in touch. Okay, got it. Let's move on to -

Dedecker: Happier things?

Jase: - happier topic, which is you were telling us about a case that you worked on recently in Maryland, about actually getting parenting rights for three parents.

Jonathan: Yes, so this is one of a number of cases that have been happening around the country. This isn't a case that you'll see articles written about because this was something where we were actually able to come to a settlement before there was actually even a trial. Basically, this case involved two women who were in a relationship with each other, and one of the women had sex with a man and got pregnant. The two women decided to raise the child together. The women ended up splitting up and then they were living apart but sharing custody of the child.

Then, the father came back into the picture, and first got every other weekend custody, but then decided to seek full custody of the child and sued against the biological mother. My client was the person, who the child was spending most of the time with. Basically, at the point that this started, it was five days a week, the child was living with her.

Emily: She was the non-biological mother?

Jonathan: Exactly, she's the non-biological mother. She wasn't the legal parent. She wasn't the biological parent. She wasn't an adoptive parent. You basically can't do an adoption when there is two existing parents. Unless, someone agrees to completely give up their parental rights. Fortunately, in 2016, Maryland, where this case was, adopted a doctrine called De Facto Parenthood, which is something that's been done in a number of states and it's--

Dedeker: California has adopted that, is that right?

Jonathan: Something similar.

Dedeker: I thought there was a similar a case in California.

Jonathan: I was looking at a map, a couple of days ago, and there are gradations in terms of the level of protections for De Facto parents in California, was not on the highest level but it was not on the lowest level, so I don't know the exact detail-

Jase: In there somewhere.

Jonathan: - for California. In Maryland, they got a really strong decision and so a former live-in partner who meets the four criteria would be able to seek custody or visitation on an equal playing field with the biological or adoptive parent. Those four things are that the biological or adoptive parents consented to and encouraged the petitioners formation and establishment of a parent-like relationship with the child. Two, that the petitioner and the child lived together in the same household.

Three, that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including financial responsibility. Four, that the petitioner has been in a parental role for long enough to develop a "bonded, dependent relationship, parental in nature". If over the course of, basically, years, this person is treated as a parent by the legal parent and they're living in the house and they're contributing towards the child's well being, and basically being a parent, then they can contest for custody on equal ground and then it's a matter of what's in the best interest of the child.

Dedeker: I see.

Jonathan: That's versus normally someone who is not a biological or adopted parent, who wants to get custody of a child, would need to show that the other parent is unfit.

Dedeker: I see. Okay.

Jonathan: Which is tough to do, this gave my client, then that equal standing. Then when we went into court and we were able to establish that my client qualifies as a De Facto parent. Basically, once we got that, then we were able to work with the two biological parents to get a settlement that basically got everything that we were looking for. My client is now recognized as a legal parent and she has joint physical custody and joint legal custody of this child.

Emily: That's amazing.

Dedeker: With States that do incorporate the De Facto parenting thing, is this something that-- Let's say it's not a situation where there's the biological parents splitting up. The situation that the case was, as in three people who come together and decide we want to raise a child together, is there a way for them to proactively get these parenting rights granted or is not really a precedent for that yet.

Jonathan: It's not very developed yet. All these three parents stuff is the cutting edge of family law.

Dedeker: Seems like it's been a little bit reactionary to a certain extent.

Jonathan: These fact patterns are coming up and judges are starting to be more receptive to the idea that maybe having three parental figures is okay. Maybe their rights can be protected.

Jase: It's great that there have been a number of talks today about either people's personal stories or like Doctor Elizabeth Sheff's research about polyamorous families. Hopefully, as there is more and more of those longitudinal studies showing the well being of children with multiple parents that hopefully more judges and more lawmakers would start to come around to that.

Jonathan: Absolutely.

Jase: I don't know how far off that's going to be but--

Dedeker: Probably a bit. Where my brain goes to, it seems like a big part of the De Facto parent thing is that you all ready have to have these years of time to prove the child has spent a lot of the child's time with this parent. This parent has been driving the kid to school, has been getting him to the doctor and whatever but that-- In the case of like three people who just decide they want to have a baby together. They don't necessarily have that body of evidence there to prove that this third person is a De Facto parent. That seems like there would be an issue there.

Emily: Yes. Sometimes would have to go by without those protections first.

Jonathan: Basically, it's important to keep in mind that when you have people who are agreeing with each other, they can divide the parental responsibilities however they want. This is only something that comes into play when there's a dispute.

Emily: It's like this example here of getting these parental protections. Do this also then apply to things like hospital visits, or some of the classic examples used where, family members and parents have more rights than your mom's boyfriend does, or your mom's girlfriend does. Something like that. Does it also apply to that or is this really only about custody and about having an equal playing field in terms of fighting for that.

Jonathan: There is two parts of custody. There is physical custody and legal custody. Physical custody-

Emily: What's the difference, yes?

Jonathan: - is where the child spends time and who is with the child, every other weekend with his parents or one week with his parents, one week with the other parent, that's physical custody.

Emily: Got it.

Jonathan: Legal custody is about decision making, mostly about healthcare, education and religion.

Dedeker: Like who can sign?

Jonathan: Yes, and who decides what school the child goes to, who decides if the child gets particular medical care or dental care.

Jase: Right.

Jonathan: If the child is raised in a particular religious faith. Those are the classic parental decision making that's part of legal custody.

Jase: I see. In this example in Maryland, is this both legal and physical then you said?

Jonathan: Yes. The client got both and actually the legal custody was granted to the three parents collectively. In theory, when any major decision has to be made in those areas, the three of them have to talk and come to an agreement.

Emily: That's good. Yes, I know. If something happens and you are in need of an attorney and you are polyamorous, how do you find an attorney that is poly-friendly?

Dedeker: Other than you and Diana.

[laughter]

Emily: Exactly. Go to the two of you first, but if you are out of the city of Maryland or New York.

Jonathan: Right. There is a great list of poly-friendly professionals. It is website, you can look up and there are poly-friendly attorneys in probably 15 or 20 states, who are listed. If someone is hearing this and you are an attorney and you are poly-friendly and you are not on that list, get on it.

Dedeker: Get on that list.

Jonathan: Yes.

Dedeker: Are you-- just to clarify-- are you talking about the poly-friendly professionals' list that's run through like the NCSF and--

Jonathan: NCSF does the kink aware professionals.

Dedeker: Yes, because I'm in that directory. Yeah.

Jonathan: There is a separate poly-friendly professionals list.

Dedeker: Okay, got it.

Jase: Maintained by the same people or is it a totally separate team?

Jonathan: It is maintained by a different organization.

Jase: Yes. Okay.

Dedeker: Is this something where people just Google poly-friendly professionals, they'll find it?

Jonathan: Yes. Type in poly-friendly professionals and you will find it. You can search by what time, by what kind of professional and by State.

Emily: Lovely.

Jonathan: Which is particularly important in legal context.

Dedeker: Of course.

Jase: For most of these things, it totally depends on State.

Dedeker: That makes sense. Wow, I feel like we covered a lot of ground.

Emily: We did a tone.

Jase: Now, is there anything else that you feel like we haven't covered today that you would really-- you feel like our listeners at home will be able to benefit from? I feel like we've covered so much.

Jonathan: It's good for now, maybe I'll come back next year.

[laughter]

Dedeker: Come back to the Southwest Love Fest again.

Jonathan: Exactly.

Emily: A lot more information for us.

Dedeker: Specifically, where can our listeners find out more about you and the work that you do?

Jonathan: You can find my website for JD Lane Law at www.jdlanelaw.com and you will find all my contact information on there.

Dedeker: Okay, excellent

Emily: Awesome

Dedeker: Thank you so much.

Dedeker: Thank you Jonathan.

Dedeker: I feel like I have learnt so much, today.

Jase: Seriously, yes, I feel like I have a little law 100 class.