Pennsylvania court rules that father should not have been deprived of custody based on his past polyamorous relationship

A Pennsylvania appeals court has overturned a trial court order giving custody of two children to their maternal grandparents rather than their father.  The trial court penalized the father for his past polyamorous relationship.  The case, V.C. and C.B. v. J.E.B. and C.C., is the first one I can remember using the phrase "polyamory" or discussing the practice without prejudgment.

The father, C.C., and the mother, J.E.B., never married.  The two resided with the mother's husband, and the three had a polyamorous relationship.  In June 2007, when the children, A.B. and Z.B., were approximately two and three years old, the older child sustained a spiral fracture to her leg, prompting an abuse investigation by the New Jersey Department of Youth and Family Services.  While the investigation was pending, the children were placed with the mother's parents.  Although the agency determined there was no abuse in about six months, the children remained with their grandparents another nine months, until September 2008.

Sometime in 2007, another woman joined the polyamorous relationship.  The father married that woman and had a daughter with her.  When A.B. and Z.B. returned to their parents, they lived with all four adults until the four-way polyamorous relationship ended and the father and his wife moved to an adjoining apartment in the same building and, in April 2010, to a new home, still walking distance from the mother's home.  The mother and father shared legal custody, rotated physical custody, and gave the grandparents partial custody (otherwise known as visitation) on alternating weekends.

In February 2011, the grandparents filed a petition that either they or the mother receive primary custody.  This prompted the father to file for shared legal custody with the mother and primary physical custody with him, and for the mother to request primary physical custody with her.  After a December 2011 trial, the judge awarded primary physical custody and sole legal custody to the grandparents, with two non-consecutive days of visitation to the mother and the father monthly.

The father appealed.  (The mother did not file an appeal but she did file a brief asking that the trial court order be overturned.)  The appeals court emphasized the high burden of proof on the grandparents.  In fact, this case reminded me of several cases in the 1970 and 80s in which lesbian mothers lost custody to their own parents, the children's paternal grandparents, or other relatives. (The most publicized such case actually happened in the early 1990s, when Sharon Bottoms lost custody of her son Tyler to her mother....More on another similarity to that case later).  The court said the grandparents needed overcome by clear and convincing evidence the presumption in favor of the father, and that the trial court was wrong to find they had sustained that burden.

The appeals court said the judge interjected "artificial morality concerns" into its determination, something not permitted by the list of factors in the custody statute.  Although the trial judge claimed otherwise, the appeals court found that the judge's "general disfavor of polyamory" played a role in the decision.  At the time of the trial the father was no longer in a polyamorous relationship.  They appeals court noted that "while ultimately unsuccessful, his former experimentation with that lifestyle did not harm the children and does not currently affect the children negatively."  The appeals court called polyamory "a nontraditional sexual practice," but considered it analogous to other cases in which a parent's previous sexual conduct was found irrelevant absent evidence of harm to the child.

Sex figured into this case in another way.  The trial court considered the father's wife's friendship with a professional dominatrix and her blog post in which she described herself as a "closet poly."  The appeals court found that "the trial court's preoccupation with these morality issues is improper, particularly where, as here, there is a dearth of evidence to suggest that the sexual practices affected the children at all."

The appeals court was also disturbed about the mother's testimony that her uncle had raped her over a seven year period when she was a child and that the grandparents had been indifferent to the mother's experience, even to the point where the grandfather insisted on inviting his brother, the rapist, to the mother's wedding.  "We are alarmed," wrote the appeals court, "by the trial court's utter failure to confront mother's allegations of sexual abuse by a family member." This aspect of the case reminded me of Sharon Bottoms, who testified that her mother's live-in male partner had raped her as a child; Sharon's mother had that partner move out only when she decided to fight for custody of Tyler.  The courts consistently ignored these facts in awarding custody to the grandmother.

The appeals court was so troubled by the trial court order that it awarded custody to the father, rather than remand for a new determination.  As a side note, I am impressed that the trial occured only nine months ago.  Too often, appeals drag on and children get used to living in a home they should never have gone to.  This can make it hard for the parent who wins on appeal to ever get the children back.

There are a couple of troubling things about the case.  The polyamory was in the past.  That might be read as a factor as important as the lack of adverse impact.  I hope in the future the case will be read to require a finding of adverse impact even if the parent is still in a polyamorous relationship.  Also, the court said that had the father and the grandparents been on a level playing field, it would have been disinclined to disturb the trial court's findings that the grandparents were "better suited to foster [the children's] development."  This could give a window of opportunity to a parent opposing the other parent's polyamorous lifestyle to use that fact without a rigorous examination of the impact on the children.

Still, this case is an overall victory for separating moral judgments about sex from determining a child's best interests.

The right not to marry? Ruthann Robson thinks this might lurk in the right to marry cases

I consider CUNY-Queens law professor Ruthann Robson a fellow traveller among critics of the single-minded quest for marriage equality.  I am happy to see that she has contributed to the SCOTUSBLOG online symposium on the same-sex marriage cases that the Supreme Court will be discussing tomorrow at their conference.  Once we know whether (more likely which) of the cases the Court will hear this term, the work of briefing those cases will begin.

I fear, as always, that arguments for marriage equality that idolize marriage actually create less space for families and relationships not organized around marriage.  Robson suggests an alternate possibility, that if the Court finds the right to marry fundmental then the right not to marry should also be considered fundamental.  Here is how she puts it:

For if the Court deemed the right to marry fundamental, then the concomitant right – the right not to marry – should likewise be fundamental. Revived proposals to condition poverty assistance on marital status, as well as tax benefits and burdens based on marital status, would require strict judicial scrutiny. While “marriage equality” advocates have often quelled the objections of more nonconformist LGBT activists with assurances that same-sex marriage will not mandate marriage, a judicial commitment to strictly scrutinize government laws channeling people into marriage might make the choice whether or not to marry less legally over-determined.

I find myself skeptical.  I think Robson may have underestimated the extent to which marriage equality supporters want everyone -- including gay people -- channeled into marriage.  But how great if it turns out just the way she says!

United Nations document omits LGBT parents

The United Nations Office of the High Commissioner for Human Rights has released a publication, Born Free and Equal: Sexual Orientation and Gender Identity in Human Rights Law. Sounds good, right?  Well not if you're looking for support for LGBT parents and their children.  The publication is completely silent on that.

This is a puzzle.  It's not like there is no law.  I wrote extensively about the decision of the Inter-American Court of Human Rights vindicating the rights of Karen Atala and her children.  The European Court of Human Rights ruled in favor of a gay father deprived of custody based on his sexual orientation in Salgueiro da Silva Mouta v. Portugal.  It also ruled that France could not ban adoption by a gay or lesbian person in E.B. v. France.  There are numerous law reviews articles on international human rights law and LGBT parents, as well as a chapter on parenting in a casebook, Sexual Orientation, Gender Indentity, and Justice: A Comparative Law Casebook, available on line.

The UN report does have a chapter about discrimination (and says it is bad), but nothing in that chapter mentions discrimination in adoption or access to assited reproduction or child custody.  The report lists some areas of concern when it comes to discrimination, naming employment, health, and education.  There is mention that States need not allow same-sex marriage under international human rights law but that same-sex couples should prevail on anti-discrimination grounds when it comes to such matters as pensions, inheritance, and other partner circumstances.  This makes it especially odd that the report does not mention LGBT parenting when international human rights law definitely does contain a nondiscrimination principle in that area.

I don't even have a guess about the reasoning behind this omission.  But it troubles me greatly.  (Thanks to Shannon Minter for bringing this to my attention.)

Heterosexual mother behaving badly

In my circle of LGBT family lawyers, we talk about LBBs, lesbians behaving badly.  This is customarily a shorthand reference to a biological (or legal adoptive) mother who deprives her child of a relationship with her ex-partner, who the child views as also being a parent.  Well, I always say that whatever happens in our families happens in straight families, only more often (since there are more of them).  And a case from Illinois in the last couple of weeks reminds me how true this is.

The family in the case, In re Scarlett Z-D, consists of Jim and Maria and the daughter that Maria adopted as a 3 year old in Slovakia in 2003 while visiting family there.  Jim did not adopt with her because the couple was not married, but he went to Slovakia several times, and was involved in and paid for the process, which took a year.  In 2004, Maria and Scarlett returned to the US and lived as a family with Jim.  For four years, Scarlett called Jim "daddy" and Maria held him out as Scarlett's father.  He did not adopt her, however, and in fact Maria never did a US adoption of her. (This is not required but parents of international adoptees often do it).  It also appears from the initials that comprise Scarlett's last name in the caption of the case that Maria gave the child a last name that hyphenated her name and Jim's name.

When the couple's relationship ended, you guessed it, Maria cut Jim out of Scarlett's life.  Jim filed both a parentage action and a request for custody and visitation rights.  There was a trial that established the close bond between Jim and Scarlett and the harmful consequences of removing Jim from Scarlett's life.  The trial judge was completely sympathetic to Jim's argument but felt bound by the law to dismiss his case. Jim appealed, and the appeals court also said that under Illinois he was not a parent and lacked standing to even bring an action concerning Scarlett's custody.

Illinois is one of the states whose appellate courts have, in my opinion, overread Troxel v. Granville. By that I mean that the courts have attributed more rights to a legal parent than I believe Troxel requires when it comes to the question of court-ordered visitation by someone who is not a legal parent but has functioned as one.  Plenty of other states have found that a person who has fully functioned as a parent to a child, with the approval of the child's legal parent, can get visitation with that child, or even custody, without running afoul of Troxel.

The Scarlett Z-D court repeated pronouncements from other Illinois cases about Troxel but also held the neither Illinois statutory law nor Illinois common law allow a person in Jim's position to petition for custody or visitation.  The court did indicate that the legislature could fix this problem through statutory reform.

And that's where the matter stands in Illinois.  Lesbian legally unrecognized moms have faced this problem there.  And in a particularly horrendous case an FTM transgender father lost all contact with the children his wife gave birth to as a result of jointly planned assisted conception because the court ruled he was legally female, therefore the marriage was invalid, therefore he was not the children's father.

The Illinois legislature needs to act to end such tragic decisions that rob children of parental love and support in this way.

Chapter Six did change my life

I still have my original paperback of Shulamith Firestone's The Dialectic of Sex.  I read it in the winter of 1972.  The tagline on the cover read:  Chapter Six Might Change Your Life.  Chapter Six was about love.  Here's what I remember.

I thought love (including heterosexual love) was personal, that it was about a relationship between two people.  It never occurred to me that there could be a political component to an intimate relationship, but Shulamith Firestone showed me I was wrong.  And that did change my life.

I last read Dialectic of Sex 15 or 20 years ago (I think...I do lose track of time....).  I was preparing materials for a law school seminar on feminist theory in action.  My students had externship placements in various government agencies and nonprofits, and once a week we got together and discussed feminist theory as it related to class readings and their work experiences.  I wanted to give them some readings from before there was a field called "feminist jurisprudence."  I thought about the readings that had radicalized me and went back through a lot of them to see what I might assign.

Some of what worked in 1972 held up very well.  Dialectic of Sex didn't.  If my goal was selecting readings that would speak to my students, then the readings had to be in a language they could relate to.  Firestone's book wasn't it.  The problem wasn't the content.  I would not have minded letting them discuss whether reproduction outside the female body was a necessary component of feminist revolution.  I don't think it was Marx and Engels either; I did choose something from socialist feminism for them to read (Zillah Eisenstein maybe...).  I remember thinking it was the tone or the rhetoric, that it would distract them.

My copy of the book is right now over 2000 miles away from where I write this entry.  So I can't refresh my memory.  I had no idea Firestone suffered from paranoid-schizophrenia.  The photo of her in all the obituaries looks well, a bit like how I looked in those days, with full, long hair and big eyeglasses. I had no idea she was so isolated that all the newspapers would have would be that 40 year old photo.  But I do feel that she is getting the attention she deserves, a lengthy, serious New York Times obit, for example.

After all, she wrote something that changed my life.  And I wasn't the only one.