Saturday, September 29, 2012

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.


Jessica said...

Hi Nancy,

I'm J.E.B. for the case you are discussing here. I want to thank you for a great coverage of it. You analysis is very much in line with my thoughts, but its good to hear from a legal professional rather than relying on my own guesses.

Linda said...

I am the Father's Wife. I wanted to also say thank you.

Nancy Polikoff said...

Thank you for your comments. I am glad you like my analysis of the case. I am sorry you had to go through what the trial judge put you and the children through. Although the opinion is not binding on judges outside of Pennsylvania, I hope it will influence judges who have to deal with cases like this in other states.

Jasmine said...
This comment has been removed by the author.
Jasmine said...

Nancy, are you familiar with Elizabeth Emens' paper?

Emens, Elizabeth F., Monogamy's Law: Compulsory Monogamy and Polyamorous Existence (February 2004). U of Chicago, Public Law Working Paper No. 58; New York University Review of Law & Social Change, Vol. 29, p. 277, 2004.

Available at

Nancy Polikoff said...

Yes, thank you. And here is another law review article on the subject: Polyamory as a Sexual Orientation by Ann Tweedy

Janet Rose said...

Thank you for your very thorough analysis of these issues. I am a mediator (also awaiting my bar exam results) who works with poly, LGBTQ and non-traditional families. Your analysis of the case is very informative and helpful for me. Sadly, I agree that it would have been more instructive if it had been someone currently in a poly relationship. But I'm glad to see some tempering of family courts' judgment of a parent's non-dangerous relationship structure.

city said...

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