Connie’s Ordeal Reflects Decades of Struggle for Gay Parental Rights
“Was that my life?” Connie often asks herself as she thinks back on the loss of her biological children in an intense custody battle with her ex-husband nearly 30 years ago. But sometimes the sadness rushes through her as if it all took place yesterday. And while she has moved on to a happy long-term relationship in another state, she still saves boxes of paperwork documenting that in 1983 a Pennsylvania court severely limited her visitation with her 13-year-old daughter and 11-year-old son, ruling that as an open homosexual she was “morally deficient” to have parental rights.
The ruling stunned Connie, a well-educated professional who had been divorced since 1976 and whose original agreement with her ex was for joint custody. When Connie went to work for a prestigious hospital in Boston, she agreed to pay child support and to fly to Pennsylvania to be with the kids one weekend a month. (She says she initially accepted the restrictive terms because the dad had threatened to take away the kids entirely if she didn’t.) The arrangement worked for seven years until she decided she’d like to have the children come up to her home in Boston for select holidays and a couple weeks in summer. The father balked, so Connie asked her lawyer to seek expanded visitation.
Dad responded by asking the local Family Court to terminate her parental rights completely. Being in a relationship with another woman, Connie knew that she would face tough questioning, and she did her homework in preparation for what would become a two-day-long trial. She turned to the pioneering organization CALM (Custody Action for Lesbian Mothers) for legal assistance, and it helped Connie organize a fundraiser endorsed and attended by the mayor of Boston, three City Council members and her boss at the hospital. Her employer even flew down to testify at the trial as to her outstanding character. The ACLU and Pennsylvania Law Review sent briefs supporting her parental rights and presenting research that there is no influence on a child’s sexual orientation by being raised by a gay parent.
But the efforts of Connie’s team were to no avail. Her children, having been persuaded that their mother was trying to take them from daddy, were called to the stand and testified that they “didn’t want to go with Connie. Suddenly, it wasn’t mommy; it was Connie.”
The attorney for their father “reamed me,” Connie recalls, hitting her with a wide gamut of thinly veiled accusations. The lawyer “asked if I kissed my daughter goodnight. When I said yes, he insinuated that she’s too old for that. He asked where the kids would sleep when they visited. I assured him they would have privacy; I even said my partner and I would sleep in separate bedrooms when they were present.”
Some of the questions were so ludicrous that Connie had to suppress the urge to laugh: “Will you have your homosexual friends over to the house? ...Will you take the children to P-Town?”
She knew she was in trouble, and the judge ruled against her, citing the “moral deficiency” standard commonly used in courts nationwide against LGBT parents who did not conceal their sexual orientation. The judge did not cite any wrongdoing. Connie appealed to Superior Court (where the lone female judge on a panel of three sided with her) and then to the state Supreme Court, which put the case on its docket but inexplicably removed it shortly before the scheduled hearing date. (It wasn’t until 2010 that Pennsylvania’s Superior Court finally made a precedent-setting ruling that a parent’s homosexual relationship cannot be considered a “moral deficiency” that a court must consider as an adverse factor in a custody case.)
Meanwhile, the end of Connie’s relationship with her children was at hand. The judge had ruled that she could visit them only with supervision at the New Jersey home of her mother, with whom Connie was not very close because of her lesbianism. After the trial, Connie says, the kids seemed “miserable” when she was around, so she phased out her visits and tried to focus on building a new life. Still, the situation sent Connie to therapy for two years and took a toll on her relationship with her partner.
Connie eventually moved to Florida where she met restaurateur Lori, her life partner of over 20 years now. Together they have parented Lori’s biological daughter, an acclaimed young opera singer, since she was three. They have a happy family life, including with Lori’s kin who “fortunately like me,” Connie says with a smile.
There was a time, right after Hurricane Andrew in 1992, when Connie held hope that she would rekindle her relationship with her biological children. That’s when her 21-year-old son “out of the blue called and asked if I was okay.” The conversation led to more phone calls and a visit during which the son wanted to know “the rest of the story” about their childhood relationship. “He didn’t remember my flying in to visit every month and had no idea I was sending child support.”
Though they have since gone their own ways except for a rare letter, Connie is content that her son better understands he was not abandoned. Unfortunately, her adult daughter has not given her mother a similar chance. Connie tried calling her once but the daughter cut off the conversation saying (as Connie remembers the words), “I don’t know how you found me. You are not my mother. Don’t call me again.”
“It hurt,” Connie says. “But I understand that she was brainwashed to believe I was trying to take her from her dad and then that I abandoned her. My kids were too young to even know that sexuality was the real issue.”
Though changing attitudes and a growing body of case law have helped level the playing field for gay parents of children from straight marriages in a majority of states, sexual orientation can still be a real issue.
According to attorney Kate Kendell, executive director of the National Center for Lesbian Rights, in a report for the American Bar Association, “Even in states that do not permit courts to discriminate on the basis of sexual orientation, overcoming judicial stereotypes about lesbian and gay parents [in cases from prior heterosexual marriages] can be a daunting challenge. In states that openly condone anti-gay discrimination, the prospects for a gay or lesbian parent to gain custody may be nil.”
Kendell found at least half a dozen states where courts still “automatically presume that a lesbian or gay male parent is unfit to have custody and at least as many in which courts may prohibit a lesbian or gay parent from exercising visitation in the presence of their same-sex partner.” Some states still demand that a gay parent not live with a same-sex partner if they’re to have or share custody of their child.
What’s more, a gay parent remains at the mercy of individual judges, most of whom are heterosexual, for unbiased
treatment. Even where they cannot cite sexual orientation as a means to deny rights, judges may consider evidence— however farfetched—that a parent’s personal behavior is detrimental to a child. (Is it wrong to take a kid on vacation to P-town? How about taking your daughter to a gay church or your teenaged son to see La Cage aux Folles?)
As a recent report by the ACLU states, “There is no guarantee that Family Court judges will treat gay parents fairly—no matter where you live or how fair the laws appear. Because the ‘best interest of the child’ standard that governs custody and visitation is so flexible, homophobic judges often can rule against a gay parent without acknowledging that it was based on the parent’s sexual orientation.”
Ironically, in the last few years the plight of gay parents with children from prior heterosexual marriages has taken a backseat in legal circles (even among LGBT advocacy groups) to custody issues involving separating gay couples. Courts are generally ruling that both parents (whether biological or not) should share custody when a gay marriage or partnership breaks up.
Equal treatment is also how most courts are now deciding gay-straight parental disputes, and that has been Connie’s simple goal for the last three decades: “If it weren’t for my sexuality, nothing would have prevented me from taking additional custody. I’m not saying that every gay person is a good parent any more than every heterosexual is. I just believe that courts should take sexuality out of the picture and look at individuals for their character and what’s in their heart.”
It would help if all Family Courts worked under uniform judicial guidelines, if a federal law or Supreme Court decision forbade judges from using sexual orientation or relationship status against a parent. However, until that happens, being a gay mom or dad in a custody dispute with a former straight spouse can still be a gut-wrenching experience.