Groups Issue Standards for Custody Disputes in Same-Sex Relationships
(NEW YORK, May 3, 1999) -- Hoping to help their communities avert a crisis, an ad-hoc alliance of LGBT legal and family-oriented organizations today launched an effort to provide guidelines for handling child custody matters when families break apart.
The recommended standards are contained in a publication entitled "Protecting Families: Standards for Child Custody Disputes in Same-Sex Relationships." The groups hope to see this widely circulated and followed by families in crisis and those who work with them.
The piece was authored by Gay & Lesbian Advocates & Defenders (GLAD), a Boston-based legal group, in collaboration with local parents, attorneys, mediators and therapists. Other organizations that later joined in the collaboration include Lambda Legal Defense & Education Fund, the National Center for Lesbian Rights, the ACLU Lesbian and Gay Rights Project, Family Pride Coalition, and COLAGE (Children of Lesbians and Gays Everywhere).
The standards aim to address the increasing prevalence of heartbreaking controversies about whether particular family members can maintain a relationship with their child when the family separates. Some of these matters go to court and some do not.
The problems have their genesis in the law's elevation of biology over (or in lieu of) actual parent-child relationships. Regardless of the actual parental role a person plays, most established law does not recognize as "parents" those who are not related to a child by biology or adoption, as is the case with many gay and lesbian parents.
In addition, since there is no divorce process to constrain the strong emotions which often accompany a break-up, some birth and adoptive parents who have the impulse to cut off the relationship between children and a family member succeed in doing so by claiming a superior legal status.
Said GLAD Civil Rights Director Mary Bonauto, "Sound judgment is often clouded by the strong emotions that accompany break-ups. It causes terrible lasting injury if the children and adults are permanently torn apart at that unfortunate moment.
"The law fails lesbian and gay families by not helping them regain a more level-headed perspective on their children's needs during 'divorce.' Lesbians and gay men who formed families and made commitments should not adopt the law's inappropriate elevation of biology over the reality of relationships."
She added, "The courts and many in our society are confused when they hear members of our community saying that our agreements don't count, our families never existed, and former partners are nothing more than 'legal strangers' or 'roommates.' How we end relationships is critical to our collective interests as well as to our children."
The Standards are directed at all same-sex families in distress. Aiming to create a new community ethic, they urge honoring of agreements among family members and putting children's needs first rather than resorting to the legal system to decide who counts as family. Overwhelmingly, for the good of all concerned, they encourage voluntary resolution of disputes in accord with basic principles about child welfare.
The guidelines go on, however, to suggest that those who go to court because they cannot reach agreement forego anti-gay arguments that will encourage or reaffirm the law's failure to accord the proper respect to family members not related by biology or marriage.
According to the groups involved, "[e]ven if legislatures and courts are slow to do so, we must recognize, respect and celebrate that families in our community are joined by intention and commitment rather than by biology or law. When some relationships in a family change or end, we must not use the absence of legal protection to suddenly delete a person as important as a parent from a child's life. We must honor our own families even if the legal system does not. That means honoring the commitments we have made to our children and to each other, and acting in the interests of the children."
The groups point to a recent decision from a California Appeals Court to illustrate the problem. The court ruled that, without the legislature making changes to the current law, it had no power to intervene on behalf of a lesbian mother with no biological or adoptive ties unless she showed the biological parent to be entirely unfit for custody.
In the case, Kathleen C. and Lisa W. lived together for several years before deciding to have a child together. Lisa gave birth the next year, with both women acting as parents. Kathleen was regularly involved in the care and support of the children (Lisa already had a child and Kathleen helped as a step-parent).
The couple split up when the second child was about 3-1/2 and Kathleen C. continued to visit with the children for 4 more years. Then Lisa C. unilaterally cut off contact between Kathleen and the children, depriving them of a parent they had known for the majority of their lives.
"As is often the case in our communities, when the courts believe they are powerless to do the right thing, then we have to help ourselves," commented Bonauto. "Our families cannot be ignored," she added. An estimated 6 to 14 million children are being raised by gay and lesbian parents, and surveys show that the percentage of lesbians who have children under age 18 in the home parallels that of heterosexual women. Many thousands of gay men are also parents.
The Standards started as a project of Gay & Lesbian Advocates & Defenders, which in January, 1998, convened a group of attorneys, as well as parents, social workers and mediators, to face up to this crisis in the community. The idea of community standards was embraced as a way of providing a core of principles for dispute resolution around child custody issues and preventing self-destruction of families.
After a period of commentary from the GLBT community, the groups involved intend to disseminate the Standards widely to people who come into contact with same-sex families. Organizations who wish to join the list of endorsers may contact GLAD.
Contact: Mary Bonauto (GLAD) 617-426-1350
Kate Kendell (NCLR) 415-392-6257
Matt Coles (ACLU) 212-549-2624
Ray Drew (Family Pride Coalition) 619-296-0199
Felicia Park-Rogers (COLAGE) 415-861-5437
Peg Byron (Lambda) 212-809-8585, 888-987-1984 (pager)