Thursday, September 8, 2011

When Love Doesn’t Make a Family

It’s often said that nothing compares to the pain of losing a child. Usually, it’s meant in the context of death, but for the countless LGBT people who have lost a relationship with their child or children because of hostile courts and /or ex-partners, that pain can be just as acute.

That’s why this week, GLAD, the National Center for Lesbian Rights (NCLR) and NCLR’s National Family Law Advisory Council released a revised version of Protecting Families: Standards for LGBT Families, a set of 10 guidelines aimed at reminding LGBT people how important it is to legally protect the families they create and to caution parents against wielding anti-LGBT laws against their partner should their relationship break-up. Basically, we’re calling on the members of our community -- and their lawyers -- to fight fairly and to do their best to avoid damaging custody disputes. As GLAD’s Mary Bonauto writes in her introduction to the standards, “We believe that, even in the midst of the emotional upheaval that inevitably accompanies the end of the adult relationship, families can do a great deal to resolve their differences in a manner that puts their children first.”

I wrote about the issue of same-sex custody disputes back in 2005 for Bay Windows newspaper. Honestly, it was one of the worst experiences of my 11-year journalism career. To put it bluntly, the subject matter was revolting.

In the newsroom we referred to these bitter battles with the shorthand “lesbians behaving badly.” It’s not that we believed they were behaving badly because they were lesbians – clearly, they were just people that had lost sight of their children’s best interests as straight parents certainly do, but for some reason nearly all of these cases involve women and nearly all of them follow a sadly similar plot: A couple in a committed relationship creates a family either biologically or through adoption and holds themselves out to the world as a two-parent family – even if their state doesn’t legally recognize their relationship or allow both parents to create a legal relationship with the child via second-parent adoption or some other mechanism. When the relationship ultimately ends (usually badly) the legally recognized mother attempts to cut her ex out of their child’s life by arguing in court that her ex has no legal rights as a parent – or in the worst cases, that her ex is not and never was a parent at all.

In one of the more notorious cases, GLAD represented Janet Jenkins, whose ex-partner Lisa Miller, now an evangelical Christian and “ex-gay,” has waged a particularly ugly battle to keep Janet from their daughter, Isabella. When the courts ultimately awarded Janet custody of the child after years of Lisa’s obstructionism, Lisa kidnapped Isabella and fled the country; she remains at large.

In another case that I wrote about, a parent characterized her ex-partner as merely performing “caretaking functions” for their child while the parent worked outside the home. Keri Lynn Jones, a non-biological mom from Utah that I wrote about, recalled her lawyer telling her she needed to itemize every penny she had ever spent on her daughter in an effort to prove to the court she had acted as the child’s parent. “It is seriously one of the most painful things I’ve ever dealt with in my life,” Jones told me of having to prove her parentage. The Utah Supreme Court ultimately ruled that Jones, who was represented by NCLR, did not have standing to seek custody or visitation with the daughter she helped bring into the world with her former partner Cheryl Pike Barlow.

Not only are these cases devastating to the children and the parents who are cut out of their lives, they create bad case law and thus set back the whole LGBT movement, or parenting rights in general. As NCLR notes of the Utah Supreme Court decision, “[it] abolished protections for all children with non-biological parents rather than provide these protections equally to children with lesbian parents.”

The standards are common-sense reminders to LGBT people to respect and honor their family relationships in the best interest of the children involved, regardless of legal labels (#2). We hope that couples can come to a voluntary resolution (#5) and that litigation is used as a last resort (#9). It’s also our hope that couples don’t resort to homophobic / transphobic law and sentiments (#10). As Mary, who authored the original standards, writes in the revised version, “Do not resort to arguments that a person who is not a ‘legal’ parent has no right to seek custody or visitation.”

Protecting Families
was first published in 1999 in response to a steady stream of custody battles involving same-sex couples. GLAD, with assistance from NCLR and its National Family Law Advisory Council updated the standards to reflect recent changes in relationship recognition laws, including the implementation of marriage, civil unions and domestic partnerships for same-sex couples in many states.

Despite advances in relationship recognition, which provide more protections for non-biological parents, the custody battles persist, due to a combination of inconsistencies in family law from state to state and because some LGBT people just refuse to play fair in the heat of a bitter break-up.

It’s our collective hope that these revised standards and our renewed push to raise awareness of them in the LGBT and legal communities might help change the dynamic that has become all too common in our community.

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