Homophobia in Child Custody Cases

Lesbianism is a crime worse than murder. This was the apparent rationalization made by the judge who removed 12-year-old Cassey Ward from the custody of her lesbian mother and placed her in the care of her biological father, who was convicted of murdering his first wife in 1974. When Mary Ward attempted to appeal the case, the court refused her appeal, saying that the custody decision “had been based on the child’s best interests, not her mother’s sexual orientation.” According to the New York Times, the judge who removed Cassey from the custody of her mother explained his decision by “saying he wanted to give the child a chance to live in a ‘nonlesbian world.'” Mary Ward’s lawyer stated that her ex-husband had known for years of her sexual orientation but didn’t seek custody until Mary asked for an increase in child support. In an article detailing the struggles of gay parents, Alisa Solomon noted: “Just as employers know how to deny jobs to people of color or women without getting slapped with discrimination suits, a judge can say that a parent’s sexual orientation has no bearing and still make a homophobic ruling.”

Approximately one-third of all lesbian women have children, whether from previous heterosexual marriages, artificial insemination, or other means. Most gay custody cases involve lesbian mothers whose fitness as a parent is challenged by the child’s biological father. The case of Sharon Bottoms, which came under public scrutiny in the 1990s, is unusual because the person suing for custody of Sharon’s young son Tyler was Sharon’s mother, Kay Bottoms. “Disgust for Sharon’s homosexuality” was the reason Kay Bottoms cited for seeking custody of Tyler. The judge apparently shared that disgust, ruling that Sharon’s “lifestyle made her an unfit mother.” Despite specifying her “lifestyle” as the deciding factor, the judge denied that his ruling was based on Sharon’s homosexuality. After three years in court, Sharon Bottoms dropped her fight for custody of Tyler. The five-year-old boy was placed in the custody of his grandmother and was allowed to visit Sharon twice a month. The boy’s natural father had little involvement in Tyler’s life and was not interested in custody. He has been quoted as saying that he believed Sharon should have retained custody of the child.

The heterosexual nuclear family, consisting of husband, wife, and children, is still seen as the normal and morally superior social unit by many people in the United States. Yet a survey done in 1990 showed that only nine percent of families in America had a full-time homemaker, and only 25% of all American families “qualify as heterosexual nuclear families.” In her book Reinventing the Family, Laura Benkov states: “Lesbians and gay men challenge Ã?¯Ã?¿Ã?½family values’ rhetoric by expanding the definition of family-emphasizing relational aspects like love and commitment over any particular family structure.” However, many family court judges don’t recognize gay relationships as family units or acknowledge the commitment involved. In her essay examining the legal aspects of lesbian parenting, Rhonda Rivera points out that “Most judges are over fifty, white, and male, [and] few have had any association with openly gay people.”

One hurdle faced by lesbian mothers is the public perception of the homosexual lifestyle. Legal expert Julie Shapiro writes, “Many people, including many judges, perceive lesbians and gay men as exclusively sexual beings, while heterosexual people are perceived as people who, along with many other activities in their lives, occasionally engage in sex.” This view of gay men and lesbians as purely sexual creatures means that child custody decisions are often based on the judge’s perception of the gay parent as selfish, immoral or criminal. The fact that sodomy statutes are still on the books in many states is often used against gay parents. Though these laws are outdated and rarely used against heterosexuals, they are used often to separate children from gay parents. In his study of the ethics of societal law, Richard Mohr points out, “It would be the rare judge that did not consider the admission of regular violations of the laws as tantamount…to a showing of bad moral character.” Barret and Robinson, authors of a book about gay fathers, are critical of judges who use this tactic to remove a child from a gay home: “When courts allow prejudice and anxieties about sexual mores to overwhelm other evidence in a custody case, they stray from the goal of determining the best interests of the child.”

Bowers v. Hardwick, a case before the United States Supreme Court in 1986 “involving the arrest of a gay man in his own bedroom,” examined the criminal status of certain sexual acts. The ruling was that individual states would be allowed to retain sodomy laws and that no one can challenge these laws “based on federal constitutional privacy doctrines.” Rivera states, “The language of the opinion made it clear that five Justices of the highest court in the land have a significant distaste for homosexuality and [that] sexual practices that they dislike shall not during their tenure secure the protection of the right of privacy.”

What does this mean for child custody cases? The decision allows judges who preside over child custody disputes to use state laws criminalizing sexual behavior as a basis for denying custody to a gay parent. For example, if a lesbian mother appeals a decision granting custody to her ex-husband and his new wife, the judge may use her criminal behavior-in other words, the fact that she participates in oral sex-to deny her appeal, ignoring the fact that the heterosexual guardians are just as likely to practice oral sex in their home.

Playing the role of the finder of fact allows a judge to make decisions based largely on his or her own prejudices. In the state of Missouri, “expert evidence is not binding on the trier of fact, the judge.” In other words, if a psychologist is brought in to testify that a lesbian mother is fit to be a parent, the judge can choose to disregard that testimony and deny custody to the mother. Rivera points out that “the legal standard applied in custody cases is very broad and vague.” In the original decision of custody, the judge should consider “the best interests of the child,” including an examination of “the moral environment of the home.” The judge has the power to decide what is meant by “best interests,” as well as what constitutes a moral environment.

In 1987, lesbian mothers won 15% of custody battles-a significant increase from less than 1% in 1970. Media attention has garnered support for lesbians involved in custody disputes. For example, Sharon Bottoms’ fight for custody of her son was portrayed in a made-for-TV movie called “Two Mothers for Zachary.” But gay parents still suffer discrimination in courtrooms all over the United States. Even when a lesbian is granted custody, usually because the other party has been proven to be an unfit parent, the custody is conditional. In order to retain custody of their children, lesbians and gay men are often required to live alone rather than with a partner, to refrain from showing affection to anyone of the opposite sex in front of the child, or to bring the child in contact with any homosexual acquaintances of the parent. It is true that “limits on open sexual intimacy in front of children” are imposed on heterosexual couples as well. However, Rivera notes that the courts’ idea of inappropriate conduct between homosexual couples includes holding hands or kissing on the cheek.

Furthermore, custody decisions are never final, according to Rivera. For as long as the child is a minor, “the noncustodian can attack the original decision. To change custody, a noncustodian must show … that ‘a change in circumstances’ has occurred that affects the child, and … that a change in custody would be ‘in the best interests of the child.'” If there is no change in circumstance, the ‘best interests’ argument does not come into play. Rivera states, “Parents who are gay exist in the shadow of a guillotine that lingers until the 18th birthday of their children. At any time during this period, the blade may fall and sever the parent-child relationship. Benkov says that lesbian mothers who have custody of their children are less likely than heterosexual mothers to pursue child support, for fear of rocking the boat. In 1996, Diana Muldanado’s ex-husband owed her thousands of dollars in child support; instead of paying up, he sued for custody on the basis of her lesbianism, and won.

Outdated sodomy laws and stereotypical perceptions of lesbians and gays will continue to plague gay custody cases. The real losers in these battles are the children, whose lives are disrupted and changed by the transfer of custody. When asked why she had decided not to continue fighting for custody of her son, Sharon Bottoms said simply, “He’s in school now, and he needs stability.” Columnist Michael Willhoite of The Advocate has the last word on child custody: “I know beyond question that children belong to the people who love them and treat them well… We can’t issue licenses for parenthood. But there is one thing we can do, and that is to ensure that the available pool of loving parents is a large one-and that those who are equal to the task can jump right in.”

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