Polyamory—generally defined as a consensual sexual relationship involving more than two people—can be hard to pin down. Even within the “poly” community, the term has a fluid definition. Furthermore, some practice open non-monogamy but do not identify as polyamorous, even though they may technically fit the description.
What is clear, however, is that none of the 50 US states recognize marriage between more than two people. So when a polyamorous relationship disintegrates, the legalities can be gnarly, particularly when children are involved.
De facto parenthood
If there are children in a polyamorous relationship, child custody issues can become exceedingly complicated. If two of the people in the relationship are married, there is the divorce to contend with first. And the situation becomes even more convoluted if one of the people in the marriage has a child with another person in the polyamorous relationship who is not their legal spouse.
Non-biological poly parents will have an uphill climb arguing for any rights to the child, even if they have lived with and helped raise the child. “The biological parents have an automatic, constitutional right to see the child. The additional partners will have to establish themselves as de facto parents prior to being granted visitation with the child,” says Brent Bohan, attorney with McKinley Irvin Family Law in Seattle.
The de facto parenthood doctrine allows non-parents to assert the right to visit with the child and remain in his or her life, explains attorney Stephanie Reid. Though a de facto parent in essence carries out the role of a parent, both caring for the child physically and psychologically for a substantial period of time, the granting of visitation rights is not a sure thing. “Whether this is appropriate will depend on whether it is in the child’s best interests to allow the non-parent access to the child,” says Reid.
If a polyamorous relationship is unequivocally over, the natural or legal parent may not agree that he or she consented to or fostered the relationship between their child and the de facto parent, and that could throw a wrench in gaining any rights to see the child. But providing evidence that you lived together with the child in the same household, assumed obligations of parenthood without expectation of financial compensation, and bonded with the child will impact how the court views the situation.
“The court does its best to ensure that whatever lifestyle the child had prior to court proceedings remains intact as long as it is not detrimental to the child,” says Bohan. “It is not the system’s intent to deprive a child of a person that has acted as their parent for a substantial amount of time just because they have chosen to engage in a certain type of lifestyle.”
The price of a polyamorous break-up
For polyamorous relationships that have truly shared everything, from beds to mortgage payments, tearing apart the life you have built together can be costly, both financially and emotionally. But if two people in a polyamorous relationship are married to each other and there is a third party, the third party would be precluded from arguing for maintenance or an equitable distribution of community property.
“That third party would have to claim there was a meretricious [i.e., marital-like] relationship between him or herself and the other parties,” says Bohan. Not only might people be reluctant to admit to this behavior, the case law supporting a claim of meretricious relationship expressly excludes a party from arguing such a relationship exists when the other party (or, in this case, parties) is married, explains Bohan. “Therefore, they would be excluded from an equitable division of community assets under our current case law governing meritorious relationships.”
Catching up with modern culture
“The concept of polyamory is relatively new and sometimes it takes laws awhile to catch up to the changes in society,” says Bohan. “There are some practitioners and judges that understand people live complex lives and that law cannot always be one size suits all. Dissolving relationships is never easy and our process is not always perfect, but the people working within the process try to solve these complex problems as best they can.”
While transparency and honesty are typically considered cornerstones of a polyamorous relationship, many of those in polyamorous relationships are reluctant to be open about their situation to non-poly folks. They are particularly wary of disclosing the relationship to employers, since employment morality clauses may come into play, not to mention the backlash from people intolerant of non-traditional relationships. This desire to be tight-lipped can get in the way when seeking any sort of legal support in the wake of a split or child custody issues. Nevertheless, “It is not the court’s job or even an attorney’s job to judge someone’s lifestyle,” says Bohan, “but to rather help them reach a solution to their problems.”