Everyone in the access to justice community knows Karen Lash as a dedicated and brilliant deputy director of the DOJ ATJ Office.
Now she may be about to be even better known as the loving and loved family member portrayed in Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families, written by her, wife Martha Ertman, a professor at the University of Maryland Law School.
It is a transformative, beautiful and astonishingly well timed, because it blends her personal story with astute yet accessible legal analysis. It conveys both the extent to which contracts law allows people to shape what she calls “Plan B families,” and the impact on those who are able or unable to do so. It might seem at first blush that this is now unnecessary after the recent Supreme Court decision. In fact, such a conclusion would fail to recognize the extent to which the need to go beyond status law to shape families by agreements goes way beyond those (now much fewer) denied the availability or assistance of the legal status of marriage to define their relationships. Rather, as Professor Ertman’s careful analysis of issues such as insemination, surrogacy, and parenthood in gay families, shows, there are still not only needs for, but huge benefits for the people involved making their own choices, and using contracts to give them their own status. I find her brief accessible summaries of the law, stating the general rule, the exceptions, and (when needed) the exceptions to the exceptions, quite wonderful, and in exactly the same spirit as the more narrative parts of the book.
As so often, a writer speaks best for herself. Here, with permission (rights reserved), is an extract in which she tells a story of her son and wife.
As usual, Walter’s tearing around with other kids. This time they’re being led in a fierce game of tag by a wiry girl whom I’ve just learned has two dads. When I get a chance, I lean in to tell Walter this news, which he brushes off. But the sturdy blond behind him is nonplussed. He snaps his hand at Walter’s arm, exclaiming, “Two dads?!” clearly expecting a response.
Walter doesn’t respond, just keeps on running.
As soon as the blond boy catches up with Walter, he whaps him again on the arm, crying out more loudly this time, “TWO DADS??!!”
Again Walter blows him off and keeps running.
Finally, the blond boy grabs Walter’s sleeve, forcing him to stop and answer the urgent query, put yet again. Hovering at the sidelines, I’m wondering whether I should jump in, explain that love comes in different packages and give a few examples of Plan B families, when Walter finally responds. Apparently, he’s picked up a generous habit that Karen and Victor [the boy’s very involved father] share, finding one sliver of a statement to agree with and pretending that it’s all that’s been said.
“You’re right, it is unusual. Usually, it’s two moms,” Walter says easily, looking directly at his interrogator, barely waiting for the blond boy to take in his answer before sprinting away. The boy looks a little stunned, then grunts, either conceding the point or just giving up as he takes off after Walter.
Walter, it seems, can convey an idea much more succinctly than his mother. Though I wrote this book in part to protect him by nudging the world just a little toward embracing Plan B families, he’s doing fine on his own.
On a different front, Professor Ertman tells of her effort to persuade their attorney of the value of including emotional statements and memories in the document that restructured their family to include Karen in pre-existing Plan B family with Victor and the son.
A month before our wedding, Karen and I are here in this lawyer’s office to make sure that we’ve made Karen as much of a parent as the law will allow. But that’s edgy enough for the attorney without all the language she’s dubbed “extraneous.” I explain to her that all that mushy stuff is in the contract so that a judge doesn’t see it. Like the Utah lawyer who reviewed Victor and my initial coparenting agreement, this lawyer would rather fold Karen in as Walter’s third parent with as little flowery language as possible. She has circled my suggestion that we start off by proclaiming the “spirit of love, hope, cooperation and mutual respect” we bring to the agreement, and also the part about Karen reading Walter Curious George the first night she came over for dinner. But Gaty’s Day bugs her the most.
To defend this infusion of love into otherwise lawyerly language, I tell the lawyer that Gaty is Walter’s name for Karen, that he gave it to her when he could barely talk. Gaty’s Day was Victor’s idea, a Sunday between Mother’s Day and Father’s Day, to honor her in-between situation. Walter was just four years old then and made a card with me for her. When I asked Walter to tell me special things about his Gaty, he dictated, “She reads to me,” and “‘Gaties make Mommies happy.”
“It’s true, Gaties do make Mommies happy, and even Walter knows that if Mamma ain’t happy, ain’t nobody happy,” I finish, relieved to hear Karen’s chuckle. The lawyer’s expression remains blank, so I explain that I put the story in our contract to function like a levee. If any one of us gets awful or stupid or mean, I hope that it could hold us back from getting even more awful. The idea is that reminding us of the full hearts with which we started out could decrease the likelihood of an acrimonious, expensive legal fight that would hurt Walter most of all.
Knowing that I’ve slipped into law professor mode, I glance over to Karen and see her wipe away a tear. That feeling is precisely what I’d like to cue up if one of us became a drug addict or went orthodox and shaved her head, either of which could land us in some other lawyer’s office to negotiate a separation agreement. The point of committing these emotions to paper is to evoke them later, if need be, to trigger memories of the full hearts and big hopes on the front end of our marriage.
To make Karen a legal parent, we each give and take. Victor and I give Karen the right to visitation with Walter if she and I break up, and Karen takes on the duty of paying child support. We also build in the possibilities of change, amping up her visitation and child support after we’ve been married for a while. Fortunately, DC has just enacted a law recognizing a status like Karen’s, calling it “de facto parenthood.”
It takes two more trips to the lawyer’s office to hammer out terms that satisfy Karen, Victor, the attorney, and me, from lawyerly technicalities to the emotional terms we all call “mush.” What started out as an addendum to Victor’s and my coparenting agreement has blossomed into a bouquet of wills and powers of attorney, alongside the amended parenting agreement. As we sign the lawyer says that she’s never had clients think through everything so carefully, then adds, “in a good way.” On the way downstairs, clutching documents still warm from the copying machine, Karen squeezes my hand, as if she, too, feels that signing on all those dotted lines brought into being a family every bit as much as the vows of forever that we plan to recite, all dressed up and surrounded by a hundred dear ones summoned to celebrate with us.
Professor Ertman spoke at our retirement community a few nights ago. It so happens that one of the developers of the other “Plan B“, Doctor Philip Corfman, lives here. So we got a wonderful shot of the ultimate “Plan B family,” The one joining the person who helped us understand Plan B parenting (and more) and the one who brought us Plan B non-parenting. Both, of course, are really about choice and freedom. Look at those smiles!