What Consent Can Mean

Over the past several months, with the #MeToo movement taking hold, discussions about sexual harassment, sexual assault, and sexual crimes have become more prevalent. Many major figures have been accused of the above, from businesspeople to politicians [Ed: Are these still separate categories?]. Reports seem to be more frequent and, thankfully, more often believed.

The dictionary definition of consent is to give assent or approval. (https://www.merriam-webster.com/dictionary/consent). The legal definition of consent is, in part, “A voluntary yielding to what another proposes or desires; agreement, approval, or permission regarding some act or purpose, esp. given voluntarily by a competent person; legally effective assent.” (Black’s Law Dictionary (10th ed. 2014) available at Westlaw BLACKS.) THEN, there are several further terms, including general consent, express consent, implied consent, knowing consent, and informed consent. (Id.)

Informed consent is an incredibly important concept, especially when dealing with forming alternative families. Informed consent is defined as “[a] person’s agreement to allow something to happen MADE WITH FULL KNOWLEDGE OF THE RISKS INVOLVED AND THE ALTERNATIVES.” (Id.) The underlined part can make a huge difference.  If you are asked to do something, but you do not know or understand the potential consequences, are you really at liberty to give informed consent?

Here is why this concept of consent is so important for alternative families.

First, it is important in the context of parenting. When a person is not a biological or adoptive parent of a child, it is exceptionally difficult for that person to seek custody of that child. One way to gain standing to seek custody of a child is to establish that that person is a de facto parent. To become a de facto parent, there are multiple elements and the first element is “…that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child…” H.S.H.-K., 533 N.W.2d at 435–36.

Consider a situation where a person lives in the same household as a child (maybe a friend who is staying for a long time). That person may develop a strong relationship with a child; however, unless a parent consented to a parent-like relationship, this factor of the test is not met.

Secondly, informed consent is important with regards to alternative families in cohabitation agreements. Different states have different requirements for cohabitation agreements. However, a common trend has developed that cohabitation agreements are not valid when a person does not give full and complete information about their assets to the other person in the agreement.

Lastly, remember that another term for polyamory is “consensual non-monogamy.” If someone in a relationship is seeing a third person over the objection of the other person in the relationship, that’s not polyamory; it’s just cheating! True consent requires more than being sober and awake; it requires full knowledge of all the material facts.

All edits are by my very helpful partner. 

Disclaimer: Nothing in this post is intended as legal advice or to create an attorney-client relationship. If you have any legal concerns, please contact an attorney qualified to practice law in your state or district.

 

Ben Schenker