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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