Protect Gay & Lesbian Custody Rights in Divorce

By Glenn Sacks

In a recent interview with People magazine, newly-married Hollywood power couple Ellen DeGeneres & Portia de Rossi discussed their future, and DeGeneres said, "We love our life, but we know how much [having children] adds to it." But what happens to their ties to their kids if they split up? Are the loving bonds gay and lesbian couples share with their children legally protected?

There is an increasing body of litigated lesbian custody cases, and from the early returns it appears that these custody disputes will be just as ugly as heterosexual ones. Lesbian biological moms often seek to exclude their former partners—the social mothers—from their children’s lives after divorce or separation. To date the courts have done a poor job of protecting the rights of lesbian social mothers.

Sometimes social mothers’ court-ordered parenting time is denied or impeded. Sometimes the children are moved far away, or dubious claims of abuse are made. Sometimes the biological mother badmouths her ex to the children, who then "decide" they don’t want to see their social moms.

One of the saddest cases is the Lisa Miller vs. Janet Jenkins custody battle. The former couple joined in a same-sex civil union in Vermont in 2000 and had a child together in 2002. After their breakup, Miller, the biological mother, moved to Virginia with their daughter Isabella, won sole custody, and excluded Jenkins from the girl’s life.

Jenkins had been involved in Miller’s pregnancy from the beginning, was present in the delivery room, worked to support the family, and played an important role in Isabella’s life.

Following their breakup, Jenkins was granted visitation rights but Miller refused to comply. Jenkins has not been able to see their daughter since 2004 but has pursued a long, hard legal battle to get back in her daughter’s life.

There are many similar cases:

***After English lesbian mom Connie Springfield broke up with her partner Sarah Courtney, with whom she adopted two children, she permanently moved the children to Canada under the guise of taking them there to visit. The Canadian judge called the move "long thought out" and "deceptive."

***Canadian former lesbian partners L.K. and C.L. are fighting over custody of their five-year-old, and bio mom C.L. has employed dubious allegations of abuse to scuttle the joint application for adoption that the couple had signed when they were still together.

***In A.H. v. M.P., the Massachusetts Supreme Judicial Court ruled against breadwinning social mom A.H., allowing bio mom M.P. to deny A.H. joint custody and minimize A.H.’s role in their boy’s life.

***In an Ohio case, bio mom Denise Fairchild (the birth mother) tried to use Ohio’s ban on same-sex marriage to abrogate the joint custody agreement she and Therese Leach signed when their now 12-year-old boy was little. Leach won, but only after an expensive after a three-year legal battle.

***In the Wheeler case in Georgia, Sara Wheeler, a one-time gay rights activist and advocate, argued that it’s her "right" to eliminate her former partner Missy Wheeler from their son’s life. According to the Associated Press, Sara Wheeler has done "something she once would have considered unthinkable - arguing that gays don’t have the legal right to adopt children." Missy Wheeler won after a grueling legal battle.

***In Jones v. Barlow in Utah, bio mom Cheryl Pike Barlow refuses to allow ex-partner Keri Lynne Jones contact with the little girl they agreed to have together, raised, and gave both of their surnames. Barlow moved the girl to Texas, and argues that Jones should not be allowed contact because she is gay. Last year the Utah Supreme Court ruled in her favor.

LGBT activists believe courts haven’t adequately protected the rights of lesbian social mothers because of the tenuous legal status of gay marriages and relationships, and they’re partly correct. But much of the problem lies in the way courts treat noncustodial parents, regardless of sexual orientation.

According to the Children’s Rights Council, a Washington, DC-based children’s advocacy group, more than five million American children each year have their access to their noncustodial parents interfered with or blocked by custodial parents. Numerous academic studies document this problem.

What’s needed for lesbian social mothers is the same thing that noncustodial parents have long fought for—a rebuttable presumption of shared custody after a divorce or separation. Under this presumption, as long as both parents are fit, they will both have the right to share equally in raising their children. The fitness requirement excludes parents who have been physically abusive, who abuse drugs or alcohol, or who have significant mental disorders.

These presumptions do exist in some states, but they are generally weak and too easily evaded. Gays have fought for fairness in marriage. They should also turn their attention to fairness in divorce.