Woman; 423; Lesbian Mothers and Child Custody. Part 1

Why why. And welcome to woman. Tonight we're going to discuss mothers and the custody

of their children. With me tonight is Barbara hand a practicing attorney in Buffalo New York. Barber is a member of the National Lawyers Guild. Also with me is a practicing attorney in private practice in San Francisco. Mago is a member of the California Women Lawyers Association. Both attorneys have tried and are familiar with custody cases involving mothers. Welcome to both of you. Thank you. What is the situation exactly with mothers who are involved in court fights for custody of their children. Well it's been a fairly recent phenomenon really since 1970 the women that would announce that they were lesbians and go into court and fight for the right to have their children. Prior to that time there was clothes that they would not be granted custody of their own children. In San Jose at that time there was a leading case in which a mother did admit in court that she was a lesbian and did receive custody of her three children. With that on the

record and this was the first time in any court in the country that this took place there were restrictions however on that particular case and it seems to be the trend in California at least the restrictions on that case were that she could not live with her lover and in fact she could net so your lover in the presence of the children. So now in California we estimate about 50 percent of the cases could result in the custody with the mother if she does acknowledge that she is a lesbian. However she can't win everything she can't at the same time live with her mother that's what we as attorneys have to tell our clients. Not to expect to be able to live with your lover in the children in the same household. So in a way the situation has improved because it's out in the open now. It's improved in that she's getting custody to her own children but it isn't what everybody would want or expect. But according to your experiences is that pretty much the same I think the East Coast is lagging somewhat behind and or experience in New York is that many of the

cases are not quite as favorable to the mother. I'm quite familiar with several that have taken complete custody from the mother where she is left with restrictive visitation she can visit only outside the presence of her lover which is even more dismal to have to confront a client with if she wishes to acknowledge her sexual preference that it may well cost her her children. Is that usual for custody cases heterosexual custody cases. And are those kinds of restrictions our laws on heterosexual custody cases has advanced to the point where in New York State at least the courts have a knowledge that women and men can have heterosexual relations and still maintain custody. And I have never seen a case that said to a person in a heterosexual relationship. You may have your children but not your lover. Or you may not see your children in the presence of your lover I've never seen that restriction. Have you money. In California it's a trend in that direction also there are restrictions that the court

feels they can place on any home in which it has to award children so if a woman is living with a man she's not married to. She has the choice of either marrying him or having him move out. And obviously women can't get married under our state law or any state law that I know of. So they get they feel free to say that this is not a fit home for the children. If the two adults are involved in a sexual relationship in the marriage. But it is giving way a little bit in case law. It seems it appears to me and granted you know I don't know as much about it as you to do it. It appears that the fitness of the mother and the lesbian women this is always a big question. And I wonder is there any definition of a fit parent. Traditionally there is no definition of what constitutes fitness. Nor of the other category which is what's in the best interests of the children. What's to me most essential and I wish would be the primary concern of a court is

whether a behavior of one person ordinarily of a lesbian mother has any nexus or connection to her ability to be a good parent to the children. Maia answers and phatic No. 1 sexuality doesn't have that connection to parenting. And that. All in all my experience in my dealing with experts both experts for fathers who have asserted this and my own experts from others who have said there's no connection. I've yet to see a scientific study or anything that could point its fingers and say if one is a lesbian mother it will have this adverse impact upon the children. That should be but in terms of definitions of fitness or best interests of children it's a case by case determination. It is a rather subjective determination if you have a case before one judge who is going to determine both what the facts are and what the law is and how to apply them in the best interests of the children.

A lot of the literature that I read and a lot that I didn't get to or for that I know talks about are homophobic society. And can you talk a little bit about what that means to you as lawyers trying these particular kinds of cases. Sure. I think you did mention a very important point that we should look at what the mother's relationship is with which a child or children rather than the mother's orientation. Whether sexual or heterosexual homosexuals heterosexual. And when it comes to court and it is brought out either by the father of the children or maybe the mother is in a position where she would like to admit that she is a lesbian and. That this is the case then the judge. It's like throwing up a red flag in the minds of the court. And I think larger society too that the judge is very fearful at that point of placing the children in a home might be homosexual in orientation. This is not necessarily based on any evidence that is brought into

trial because oftentimes the father's attorney just has to assert that she was a lesbian even without hard facts. And then it swings the burden of proving that she's a capable mother on to on to the mother really and so she has this huge thing to overcome the fact that she is a lesbian if she is willing to admit that even if she doesn't care to admit it it's there. And it does really. Shade the case against the mother drastically in a homophobic society which is reflected in the courts and surrounding with it a number of myths. Once the lesbian is of the mother is asserted. Like she one of those men she won't provide a fit home because there will be an array of lovers coming in and out of the home it's promiscuity promiscuity it's not a stable relationship whereas almost every case that I'm acquainted with the facts. They're not even looking at the realities of the home situation which is in fact a very stable home relationship. Usually you have both women their own children if they're

both dystonia and children you have a larger family unit. I mean that but they get into this instability promiscuity aspect that there will be sexual acts in the presence of the children. Exhibitionism because it's a lesbian home orphan with no real facts to support it. But with the court's attitude and society's attitude as it's reflected in the court saying that and again the mother is called on to defend herself and to prove that that isn't happening. The kinds of assumptions that you just do not find in a heterosexual custody fight. It seems that some of the most recent cases are very the people involved are very conservative. They're talking about a nuclear type family. They're not talking about communes and you know crazy wild lifestyles. Absolutely none of the individuals involved would have nothing to do with that way of life even if they had a preference of choice and so oftentimes the cases that

the mother is very active in community affairs maybe she is a professional woman or teacher or nurse or whatever and has started really a stable relationship with another woman. And this fact alone seems to cast a whole different light on the whole matter so that she is up against proving that she is not some kind of wild. Unstable person. Just the mere fact that she's involved in a sexual relationship with another woman. Well we're going to continue this discussion next week and we're going to be talking with two women from Texas Mary Jo Risher and Ann Foreman. Both lesbians and Mary Jo is involved in the custody case and has custody of her child and they they live together in a very conservative lifestyle. They're real you know real typical examples of the types of people that have been coming forward in these cases. And I was amazed.

You know frankly very often the woman is put in such a defensive position by the acts of the Father by calling her into court. And. You know will be put in a position where she will have to come forward perhaps at the time in which she chose to defend herself on the issues. But it seems to me that in general in many instances our attitudes toward homosexuality are improving and loosening up somewhat I mean the other disciplines the American Psychiatric Association many religious groups and so on are for gay rights. What's wrong with the legal system. Well we've had we've had some steps in the right direction and some of the civil rights cases where it's been held the various teaching licenses. Cannot be denied to someone who is homosexual because there is no rational connection between teaching and homosexuality and harm on pupils. I think in the custodial area in the family area. The courts and society has

taken a very protective role of preserving the heterosexual nuclear family. And they're fighting real hard on that one best you know and I think through a lot of education this may begin to change with this will be one of the less the attitudes. Yes I agree with that. One thing that we do see in the cases we read about and the ones we hear about is that if a woman is visible in her home with sexual activity such as she belongs to gay rights organizations that is going to go against her in court. OK I guess if you're a lesbian and don't let it be known to very many people but as long as you announce it or or make a stand on it this is frowned upon by the courts. We've seen cases where gay activists have not received either custody or teaching positions when when they were an issue. And I think this is wrong this really infringes on her right to speak out on an issue if she wants.

We see this more and more now with younger women that won't be bound by having to hide their lesbian ism. And they think it's perfectly OK. And why should a court of Jack. We have a wonderful relationship with their children. And why indeed should they not have custody of those children. And I think they're mystified and appalled by rulings against them saying you know if you have this kind of person or if you're living with another woman in a sexual relationship. We just will not allow you to have your own children it seems. Grossly unfair to me representing these clients because it really distinguishes between maybe a woman who is heterosexual in orientation she can have all the freedom she wants in her private life to see whomever she chooses without any restriction on her. And there is no question that she can have those. Is attorneys how do you protect your clients from these biases whether it be the judge or in Mary Jo Ann's case a jury which was unusual but

how do you do that. I think the beginning protection is to try as much as practicable to stay out of court to truly protect the best interests of the children and the parents of the parents go to war completely in this custody arena. They will never deal with one another again and they do have the same children and they should. And the woman in at least in the East Coast the New York State runs a great risk of losing custody completely so my perspective is to number one prepare very thoroughly to perhaps convince an adversary the father's lawyer that we should work with some independent experts and see what kinds of evaluations they have of the family unit and what's best. Perhaps to try to work out some kinds of joint custody that might give both parents a good deal of input with the children so that neither feels that they are kept out of custody and need to try to be truly innovative and protective of clients. Prior to having to go to court and the court is the last resort.

Yeah I think that's very good advice. In fact the judges themselves don't like these cases. These are the last thing they want to decide who should have the children. The father of the mother well what if you do go to court. And how would you protect your client say against the bias of a judge. First of all by competently establishing that she is in fact a very good loving competent Guardian custody and that the that is her proper role making certain that there's nothing that's going to be brought up adverse that can't be explained or countered by bringing in very cold with an expert witnesses you end up with a number of psychiatry of child psychiatrists sociologists anthropologists you have a variety one case I tried we brought several members of various denominations in to prove a community attitude about homosexuality. Just to show a variety of attitudes to show her life has been one of being a good parent.

Yes I agree I think the focus is really on the mother's relationship with the child. What would it be in the best interests of that child to be taken from the mother's custody of the child is grown up in the home of the mother. I mean ideally that's the issue that should be paramount. I agree. Your implication is the that isn't always and sometimes we get a feeling as attorneys in the courtroom saying that the judge is possibly protecting the values of the community maybe that's overriding the hetero sexual orientation versus the homosexual. Perhaps that's even the overriding concern with the judge rather than what's in the best interests of the child. Well would you ever advise a client not to disclose her sexual preference. Yes sometimes clients come to you before they've really decided what action to take in a counseling situation. They asked many question should I let my husband know I'm in a lesbian relationship or should I leave my husband what should I do. You know should I live with my lover. And as a rule of course each

situation is different but as a rule you have to say well you keep as low profile as possible don't disclose and just for your own personal and political reasons possibly have to. And don't admit to anything and try to avoid it at all costs. Well that would also be the type of advice he would give a client in a heterosexual relationship. Be discreet when I also do as I have Xerox copies of the two supreme recent Supreme Court decisions in New York State 1 and Brooklyn and one in Syracuse one of them quite lengthly and I give clients that to read and to take home and I say OK these are the risks in both cases. The mother does not have custody. These are the risks I will cite specific reasons in each case why there are some very special factors. But I think we have an obligation to educate our Korans that it can be a very difficult battle.

I think if I knew I was going to be in that kind of situation the first thing that I would be very afraid of would be finding the proper lawyer. I would think you could just let yourself in for an awful lot of trouble not getting a lawyer who would be sympathetic or who would fight for you. Yeah. So one problem that many women have is where to go to find the proper reason and is is there a way as there is there way to tell. I think a woman can go to maybe local groups or women's groups in her area. Ask their advice who they would refer. Find out who has got a good reputation as a trial attorney and domestic relations action. And also upon seeing that attorney discuss with their attorney what his or her feelings are about a lesbian and very important but the woman when trying to find her prospective attorney recognize that it is a confidential situation when she is talking with any prospective attorney and perhaps even more than one.

But don't hide relevant factors because there's no way that you can just feel someone you're going to have to recognize that is confidential that attorney can at any point reveal what happens between the attorney and the client but the news must be made aware. She should find someone she is really comfortable with who she feels will be comfortable with this. And do you think that that precludes having a male attorney. Not necessarily I think it's a lot easier with. But you advised it's really difficult to get someone you can get along with and if you're comfortable with. Right the clients seem to have a pretty good idea of whether or not the attorneys comfortable himself or herself with the subject matter because I've had them come to me and say well my last attorney really couldn't look me in the eye after I told him this was a situation whatever the circumstances were. It seems to me there's another issue involved here and that is is it really parents rights or childrens rights that are involved here.

Well that's a good first in this and I think we've got it. I think we'd like it to be children's rights predominantly. However the court in our advocacy system we end up with an attorney for the father and turning from the mother. And I know in New York State I have often made a request to have an attorney independent attorney appointed for the child or children. And I always get turned down. And in New York State it there's been no way to get them and advocate someone who truly looks after their interest because the parents are warring with one another. The children are caught in the middle of Dimes called into the judge's chambers and asked their preference which must be a very provoking question for a very young child to be asked who would you rather go with. What would you rather do. They get interviewed by psychiatrists and sociologists and social workers and everything and no one legally is looking after their rights other than the court. It sounds to me you know from from some of the descriptions I've heard like a real horror show

for kids to go through I mean how can they make that kind of determination on their own how can they accept that responsibility. What are some responses from children that you've run into from cases that you've had or heard about. Well let me first say that not every child is called upon to make a decision. In California certainly a lot of judges will not ask them when they are in the legal situation or not. You know they are in the in the private situation are they not. Sometimes they keep out of the love Mommy and Daddy both don't want to express a preference if they're old enough to understand and to do that. Real terrible tears on children. You know in one case where the oldest was about 8 at that time recounted that his father had told him if you say you want to go with Mommy you'll never see me the father again. And I think that's harmful for a child to go through that and trying to love both parents.

This is true in any custody case that goes to the Court level really that can't be resolved outside of court. But I think what comes up in lesbian mother cases is the fact that she's a lesbian possibly in a relationship and this is brought to the front and everybody's talking about it and it really impresses the children. What is this thing you know I don't quite fully understand what it means that mother is a lesbian. And had it been not played up as much as these cases seem to be by the time they get to court this I think this could be handled with a lot more adult understanding really saying she can handle it. What determines whether the child testifies or not. In California the child doesn't testify Oh this is it across the board thing. Well I've never heard of putting a child on the stand. Such children are sometimes taken into chambers and the judge will sit down with them. You know it's really what I mean. You don't go through the trauma of being in a courtroom in fact sometimes they will

talk to the judge alone and the parents won't know what the child said to the judge. Ordinarily in New York they talk with the judge alone and there are about seven or eight years old and up. And the parent neither parents nor attorneys are in the room with the judge right. So they just have a little discussion and the judge ordinarily doesn't reveal what's happened during that discussion. Let's talk briefly because we only have a few very few more minutes about the atmosphere in the court the kinds of questions that are asked of the lesbian mother and possibly her lover and other you know other people involved as far as I've seen and heard there some of the most embarrassing and difficult questions and custody cases are hard enough but these are doubly triply charged. I mean they're embarrassing questions often asked of the mother as to specifics of her sexual behavior outside the presence of the children. You know but they the judge just wants to know where the husband's lawyer wants to know details of

sexuality which are terribly embarrassing. I've had witnesses who have testified as former employers just about the employment relationship. At the end of that they're asked by somebody in the courtroom are you a lesbian. Questions that are just on for. I think this brings up what we are doing when we go to family court or any dissolution proceeding. The judge does have wide discretion to hear a lot of evidence. Sometimes the rules of evidence are way strictly speaking. So he can really inquire into the situation of the couple and the family and ask please. Very embarrassing very personal questions and feel justified in doing so. This also means that in California for instance it has to be decided in favor of the mother at the trial level because it seldom is overturned on appeal. This is due to the discretion that the courts to give the judge's thinking while he is there he

has heard everything he has talked to the children in chambers we don't have a record of that. So therefore we don't want to overturn the decision on appeal based on his factual survey of information and often takes so long for the appeal to be heard by that time a year or two have gone by and the appeals court says well we don't want to change things once more. The children are already there. One of the things that Mary Jo Richard who will be on the show next week has said is that she will take her case all the way to the Supreme Court if necessary. Now when I told you that earlier you had some negative reaction to that. Well I think in her instance it is good that she is doing that. Sometimes clients will come to me and say I have a very good case I'm a lesbian mother I'm going to admit it and I want custody of my children and live with my lover. And I would discourage them to taking it to the highest court if it meant jeopardizing custody of the children because it's just too hard to get that.

In Mary Jo understand she did lose custody of her son. And she has really nothing to lose and it would be a very good thing to get some of these constitutional issues aired. There are issues of rights of privacy. Can you explain to me as you listen we only have one minute. You have a right to privacy which is part of due process privacy that in between consenting adults and that their relationship is being arranged on. You have a right to expression. Imposition of religion or against homosexuals. Equal protection of the law in other words heterosexual parents are guaranteed certain rights per se given. Are you both hopeful about the women. Because women are being up front about

her. Protection of the. Are you both going to continue to work with. Thank you. Thank you for watching and good night. Funding was provided by public television stations provided by

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