Friday, December 16, 2016

Williams Institute marks a very personal 40th anniversary

I want to express my deep thanks to the Williams Institute at UCLA Law School for honoring the 40th anniversary of a law review article that Nan Hunter and I co-wrote  and published in 1976 entitled The Custody Rights of Lesbian Mothers: Legal Theory and Litigation Strategy.

Williams sponsored a webinar at which both Nan and I spoke, with commentary for Courtney Joslin of UC Davis Law School and Kim Pearson of Gonzaga Law School.  You can watch it here:   And these were my remarks:

            The cutting edge of the law affecting lesbian mothers today lies not in the cases that Nan and I wrote about 40 years ago, but in disputes that call into question the definition of parent, questions like: When does intent or conduct create parentage in the absence of biology, or can a child have three parents, or four?  But the increased visibility and acceptance of same-sex relationships has not stopped the phenomenon we described in the 1970’s:  a man or woman entering a heterosexual marriage, having children, and only later coming out as gay or lesbian.
            The formal law in those cases has changed since the 1970s.  No state asserts that a parent in a same-sex relationship is per se unfit.  In fact all states say that a parent’s same-sex relationship itself is not sufficient reason to deny that parent custody.  Yet such parents continue to have reasons for concern in contested cases, even in states with overall supportive law.  In the short time I have today, I am going to describe one such case and mention the reasoning of other cases.  I also want to take special note of the vulnerability of transgender parents.
            Last month, the Washington State Supreme Court heard argument in Black v Black.  Charles and Rachel Black were married for roughly 20 years and had three sons.  They raised the children in a conservative Christian home and the children attended conservative Christian private schools. Rachel was a stay-at-home mom. When the children were approximately 12, 9, and 4, Rachel told Charles she was a lesbian.  Up through the end of the divorce proceedings, three years later, the parents lived within the same home, in separate sleeping quarters, although Rachel began a relationship with a woman.
            The parents each requested the equivalent of primary physical custody and decision-making authority over education.  Rachel wanted the children to attend public school rather than a school that teaches that homosexuality is a sin. 
            I’m sure you can see where this is going.  The Guardian Ad Litem criticized what she called Rachel’s “choice” to leave the marriage and live with a female partner and said that her “choice” caused controversy and confusion. Although the statute allowed a court to consider a CHILD’s religious beliefs in deciding custody, there was no evidence presented about the children’s actual religious beliefs.  Rather, the trial court said that the father was the more stable parent, because he would remain in the family home, keep the children in the same school and maintain their religious upbringing.  The court also ordered no contact with Rachel’s partner and no exposure to anything involving homosexuality until approved by the therapist.
            Washington state has long had law prohibiting restrictions based on a parent’s sexual orientation.  A trial court cannot impose restrictions “designed to artificially ameliorate changes in a child’s life” or simply because it believes the restrictions will make the post- marriage transition easier for the child. So the Court of Appeals overturned the trial court’s imposition of restrictions.  But it upheld the decision giving primary physical custody to Charles, finding no abuse of discretion and specifically crediting the GAL’s recommendation based on the children’s need for stability.  It also upheld Charles’s sole decisionmaking authority on the children’s education, thereby guaranteeing they will remain in a school environment that teaches them that their mother is sinful.  It is that appeals court ruling that is currently before the Washington Supreme Court. 
            Notably, Charles does not maintain in his brief, nor did his attorney at oral argument, that there is any problem with Rachel being a lesbian.  Nor does he seek to reimpose restrictions on her visitation. Charles once referred to Rachel as a “militant lesbo,” but he later said he regretted that comment and that it was made out of anger and hurt.  He now focuses completely on the argument that custody with him serves the best interests of these children, given the upbringing they received during the marriage and their need for stability. But completely absent from the court rulings to date, in this case and in other recent appellate decisions, is any articulation of a heterosexual parent’s obligation and responsibility to assist the children in adjusting to having a gay or lesbian parent. Charles quotes the GAL’s position that keeping the children in their schools was “safe from an emotional perspective.”  But this is a twisted conception of emotional safety, one that ignores the teachings the children receive in school about their mother.
            In a number of other cases within the past decade, appeals courts have upheld custody awards to a heterosexual father over a lesbian mother based on a child having a difficult time adjusting to the mother’s same-sex relationship or even just feeling uncomfortable around the mother’s partner.  There is no doubt that some children do feel this way.  But not one opinion describing such facts places responsibility for the child’s difficulties on a heterosexual parent for refusal to assist the child’s adjustment to a new reality.  A gay parent can be faulted for allegedly placing her own needs above her child’s, while no heterosexual parent has been faulted for placing his needs above his child’s when he fails to ease the child’s acceptance of the mother’s new relationship.  Until courts do assess the non-gay parent’s suitability based on his willingness to facilitate the child’s acceptance of having a gay parent, lesbian mothers and gay fathers remain vulnerable to losing custody and facing visitation restrictions. 
Perhaps the most I am willing to say today is that when a parent has stable employment and housing and has not had multiple partners, and when her children show no signs of distress and do not oppose remaining with her, then she can be more confident than her counterparts 40 years ago. In the absence of any of those factors, she still faces, in more subtle ways, the vulnerability we wrote about.  I also want to alert everyone to a possible future issue.  Until the last few years, disapproving courts have been able to lump all same-sex relationships with unmarried different-sex relationships, and to restrict a child’s exposure to any nonmarital partner, something courts have repeatedly said is distinct from the parent’s sexual orientation.  Now that all same-sex couples have the option to marry, we may see overt disapproval of those who fail to do so.
            For my second point today, I want to talk about parents who transition after or at the time of divorce.  We reported in our 1976 article about the case of Christian v. Randall.  In that case, a mother had custody of her four daughters and then transitioned.  A Colorado trial court changed custody of the children to their father, against their wishes.  The appeals court reversed, finding that the “transsexual change” had had no adverse impact on the children.  I could never have imagined that, forty years later, that case would remain the single most definitive victory for a transgender parent in a contested custody dispute.  Notable in the case, however, is that the children were all thriving and wanted to remain with their mother.   Those factors are not dependably true in any child-related dispute, let alone one involving children’s reactions to a parent’s gender transition.
            I can’t be too blunt about this.  Transgender parents are facing a landscape much like the one gay and lesbian parents faced 40 years ago.  In the section of our article on litigation strategy, we began with the recommendation that the case be kept out of court.  If you open the fine materials available today to assist transgender parents and their attorneys, like Jennifer Levi’s Transgender Family Law, you will find the same advice.  A necessary component of such a strategy includes careful consideration of how both the spouse (or ex-spouse) and the children are made aware of the impending transition.  There are minefields everywhere. 
In one case a nine year child went to visit her father in another state, observed his “feminine features,” and told her mother she did not want to visit again.  The mother made no effort to assist the child’s acceptance of having a transgender parent.  The child did not see her father again until the day, six years later, when she testified in court that she wanted to be adopted by her mother’s husband so that she could have a real father.  The effect of that adoption was to terminate the rights of the transgender parent, which the court did by finding by clear and convincing evidence that the parent had inflicted emotional injury on the child.
In another case, where a mother and father began with 50-50 joint physical custody, the mother filed for sole custody based solely on the father’s transgender status and impending gender reassignment surgery.  The trial court granted the mother’s petition, once again invoking the children’s need for stability and noting that the impact of the father’s upcoming surgery was “uncertain.”  But no doubt mindful that the legal standard did not permit modification based on transgender status alone, the trial court made some other factual findings in support of its order.  This allowed the appeals court to affirm, citing the ubiquitous “no abuse of discretion” standard, and provoking a scathing dissent.
The positive trajectory for gay and lesbian parents over the last 40 years may be a harbinger that transgender parents will find greater acceptance in the future.  But recognizing the circumstances under which gay and lesbian parents remain vulnerable is cautionary, and reinforces the importance that all such parents find well-prepared counsel before a dispute with a former spouse escalates into contested litigation.


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