According to Findlaw.com, under the current law of almost all states, mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with the mother or the father. In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody. There are a few states (mostly in the South) that have laws providing that if everything else is equal, the mother may be preferred; but in those states, many fathers have been successful in obtaining custody, even if the mother is a fit parent.
In some states, courts say that mothers and fathers are to be considered equally, but the courts then go on to hold that it is permissible to consider the age or sex of the child when deciding custody. That usually translates to a preference for mothers if the child is young or female. But, again, it is possible for fathers in those states to gain custody, even when the mother is fit. Although judges are supposed to be neutral in custody disputes between mothers and fathers, some judges may be biased based on sex of the parent. As a group, judges are less biased in deciding custody cases today than in times past, although some observers believe bias still exists. The law of child custody has swung like a pendulum. From the early history of our country until the mid-1800s, fathers were favored for custody in the event of a divorce. Children were viewed as similar to property. If a husband and wife divorced, the man usually received the property--such as the farm or the family business. He also received custody of the children. Some courts viewed custody to the father as a natural extension of the father's duty to support and educate his children. By the mid-1800s, most states switched to a strong preference for the mother. This preference often was referred to as the
Tender Years Doctrine or
Maternal Presumption. Under the Tender Years Doctrine, the mother received custody as long as she was minimally fit. In other words, in a contested custody case, a mother would receive custody unless there was something very wrong with her, such as mental illness, alcoholism, or an abusive relationship with her child. The parenting skills of the father were not relevant. The automatic preference for mothers continued until the 1960s or 1980s, depending on the state. Then principles of equality took over, at least in the law books. Some judges tend to automatically favor fathers, particularly if the children are boys. In an Iowa case, for example, a trial judge gave custody of two boys, ages nine and eleven, to the father, saying that the father “will be able to engage in various activities with boys, such as athletic events, fishing, hunting, mechanical training and other activities boys are interested in.”
At the National Organization for Women's recent national conference, NOW declared that there is a "crisis for women and their children in the family law courts." According to NOW, fathers often "aggressively litigate against mothers" and "use family court to stalk, harass, punish and impoverish their former partners and children." (http://glennsacks.com/blog/?page_id=2591). Often times, no consideration is given to the best interest of the child and the court system allows this to occur.
As a lesbian, a mother, and casualty of this legal and systematic bullying, I am committing to shedding the right light on this situation. Families are being destroyed, children are being stripped of the very thing that has carried them thus far: a mother's love. According to Louisiana Courts, I have been deemed unfit to have domiciliary custody of my child because a judge indicates that "the father's lifestyle is more stable than yours' following an admission that I was in fact a lesbian. The father involved in this case, initiated the custody battle after my son Outed me to his father following my son's misbehavior's. When the father inquired about my lifestyle I told him that it was none of his business. After countless arguments, attempts to turn my son against me, and months; I received a petition for custody. Since the courts decision, I have had to endure not being able to see my child, destruction of communicative tools so that I can speak to my child frequently, and most recently, that my child can't come home for the summer. I've been limited to speaking to my child only once a week. I am unsure what the future holds, I know that I will not continue to allow these things to happen. It seems that I am the only one considering the best interest of the child. Understand that I don't have a problem with my son knowing and being involved with his father. I am the one who has helped nurture their relationship. Case in point, at my son's birth, a woman was in the delivery room with me and named my son. I contacted the father in attempt to get his signature on the birth certificate. The father refused to sign it. During the first 8 years of my son's life, the father never visited my son in Texas, nor offered any ounce of financial support. Only once did I pursue a child support petition, only to be told by the state of Texas that the father wasn't located. At the age of 8, I contacted my son's father for support with my son's behaviors in school. The father indicated to me that he was unable and not ready to take care of my son, despite the fact that he was now married and the father to two other children and 1 step child. So, the father's sister (my son's Godparent) contacted me and said that she and her husband would care for my son. At the paternal's grandmothers request, the father, got involved and signed a one year temporary custody agreement between all three adults. The first few months went smoothly, until the father and his sister begin to have disagreements that led to physical altercations, regarding allegations that the sister was a lesbian. This led to my son actually going to live with his father and his wife. The father's daughter and the wife's son don't live in the home with the family. Only my son and their youngest child. In addition, the father, has had a few DUI's and domestic violence incidents that resulted in arrest. In the court hearing, none of these things were submitted or considered. The lawyer I hired and paid in full was a male and didn't fight the case, he didn't submit evidence given and hasn't followed up with me. To date I still have no custody order, visitation agreement or any kind of judgment. The first and only court date was October 2010. After verifying this morning, the only thing on file are minutes from the hearing. When I asked what could be done so that I may see my child, I was told to contact my lawyer... the same lawyer that has failed to follow-up with me, submit any court documents to the court or me, and has failed to represent me, despite his obvious bias. In other words, the only thing I have saying that I can't have custody of my son are the words from the judges' mouth: "His father's lifestyle is more stable than yours". If this isn't legal/systematic bullying, I don't know what is.I want to examine, how the courts view 'lesbian mothers'.
'To many people in our society, the phrase "lesbian mother" is confusing and contradictory. Ignorance about homosexuality and insensitivity to women have made it difficult for many people to deal with the concept of lesbian mothers. Recent estimates suggest that there are well over 1.5 million lesbian mothers in this country.' (http://www.williamapercy.com/wiki/images/Custody_Rights_of_Lesbian_Mothers.pdf) A review of current demographics of families in the United States reveals that the traditional intact, two-parent family is yielding in prevalence to a myriad of other family forms (Flaks, Fischer, Masterpasqua, & Gregory, 1995). While impossible to portray accurately, it is estimated that somewhere between 3% and 10% of the adult male population in the United States identifies as exclusively homosexual (Patterson, 1995a; U.S. Bureau of the Census, 1983). If we extend these percentages to females, it can be estimated that there are between 7 and 15 million gays and lesbians in the United States today. Further extending these estimates to include the immediate family members (brothers, sisters, parents, and perhaps even children), reveals that at least 50 million Americans are either themselves homosexual, or have a close family member who is (Bozett, 1989; Miller, 1979) . While these estimates may be somewhat suspect, they do reveal that gays and lesbians are becoming significantly more prevalent in our society or, at least, more visible. Lesbians have been bearing and raising children for a long time, and they choose to parent for many of the same reasons as heterosexual women (Pies, 1990). Yet, when a lesbian first expresses an interest in having a child, she is likely to encounter negative reactions ranging from confusion to outright hostility (Rohrbaugh, 1989). Institutionalized beliefs presume that childbearing is only to occur within the limited context of a heterosexual relationship. Homophobia and heterosexism are the institutional reflections of social values that create and maintain the status quo, and these also operate to present lesbian motherhood as an inherent contradiction (DiLapi, 1989). Although the American family is changing, it is clear that homophobia is still a widespread phenomena.
An examination of lesbian motherhood requires a look at the social context within which women as a group currently exist in the United States. It is important to recognize that, in addition to heterosexism, lesbians also face the oppression common to all women, particularly in the areas of employment and housing (DiLapi, 1989). Yet, research has indicated that both groups are still quite capable of raising their children in appropriate and healthy ways, and that significant differences do not generally exist among them (Strong & Schinfeld, 1984). Until recently, lesbian mothers received little legal or psychological attention. The rights and needs of a lesbian mothers have been neglected because it has been generally assumed that lesbian mothers are pitiful abberrations . With the expansion of the women's and the gay liberation movements, more women are recognizing and affirming their homosexuality. Usually the worst fear of a lesbian mother, and the greatest emotional trauma and legal problem that she can encounter, is a custody battle for her children based on the grounds that her sexuality renders her "unfit". The cases overwhelmingly demonstrate the difficulty they face in attempting to maintain custody of their children and to affirm their self-identity at the same time. (http://www.williamapercy.com/wiki/images/Custody_Rights_of_Lesbian_Mothers.pdf).
The original decisions made by the courts as to which parent will receive custody of the child, is made under the view of "the best interest of the child" and any evidence concerning the child's environment is relevant. The courts are to hear evidence as to the physical facilities, locale of the home, the family composition, the moral standard of the parties, financial status, as well as evidence of the child's preference and the emotional bonds between the child and each party. While this latitude protects parents and children from inflexible rules which might preclude the essential human aspect of a custody dispute, it also permits, perhaps even encourages the biases of a judge to be given free rein. When the issue is lesbianism in a society in which homosexuality is often viewed as immoral or unhealthy, the possibility for abuse are clear. To deprive a parent of custody because of what one judge may consider misconduct offends the belief that cases should be decided on rational and predictable, rather than arbitrary grounds. Once court has recognized: {A} judge should not base his decision upon his disapproval of the morals or personal characteristics of a parent that do not harm the child. It is not his function to punish a parent by taking away a child.
Some findings suggest that there may be important and beneficial outcomes from being the product of a lesbian family, such as increased appreciations for diversity and expanded views of gender roles (Patterson, 1995b). Previous research has also revealed that lesbian mothers are more similar than different from heterosexual mothers (Harris & Turner, 1986). This raises important sociocultural and psychological issues. Should continued research demonstrate the viability of these alternative family structures, it will necessitate the reformulation of currently accepted theories (e.g., social learning) which prescribe that healthy development requires opposite-sex parents for the tasks of identification and modeling (Flaks, Ficher, Masterpasqua, & Joseph, 1995). While most of the literature on child development has been based on those raised in heterosexual families, there is also a substantial amount of empirical literature regarding those raised by gay and lesbian parents (e.g., Gottman, 1990; Riddle, 1978). Much of this research is in response to the growing visibility of lesbian and gay families, much like the single parent family, as an alternative to the traditional heterosexual family. However, in contrast to the single-parent family, the increased visibility of the gay parent families has not lead to a corresponding increase of their acceptability (Steckel, 1987).
Negative stereotypes concerning homosexuals continue to abound, including fears that they will molest children and/or seduce them into their own "deviant" homosexual lifestyle (Riddle, 1978). Given this, it is not surprising that many heterosexuals, particularly heterosexual parents, are concerned about possible consequences of contact between homosexual adults and children. These fears continue even though the American Psychological Associations has declassified homosexuality as a psychiatric disorder, and provides clear evidence that the issue is far from resolved. Research concerning the children of lesbian and gay parents has focused on such things as gender identity (Green, 1978), gender role development (Hoeffer, 1981), emotional development (Golombok, Spencer, & Rutter, 1983), intelligence (Kirkpatrick, Smith, & Roy, 1981), self-esteem (Huggins, 1989), and independence (Steckel, 1985). Much of this research is presented as a response to negative societal opinion, and sexual orientation of the parent continues to be a major issue in public policy formation (Patterson, 1992).
Many gay parents are brought to the attention of authorities when a custody battle is being waged with an ex-spouse over their children. A gay parent seeking either custody, continuation of parental rights, or visitation privileges is generally at a legal disadvantage because of the subjective criteria used by many judges to serve the "best interests" of the child (Payne, 1978). It has been estimated that a lesbian mother's likelihood of obtaining custody of her biological children is less that 50% (Falk, 1989). The odds that a gay mother or father will lose or be denied privileges increases when the parent's sexual orientation is an issue in custody hearings (Hitchens, 1980). In fact, according to Polikoff (1986), a lesbian mother must portray herself as being as close to the All-American norm as possible -- the image of her ideal heterosexual counterpart -- and preferably asexual, if she is to have any chance of obtaining custody in a court dispute. Few rights are as fundamental and accepted by society as the right of parents to raise children. Yet many courts have viewed the prospect of gays and lesbians as parents in such a negative fashion that they have refused custody to some parents based solely on their sexual orientation (Falk, 1989). Their reasons for doing this are varied, but generally center around the following alleged concerns: (a) that these parents are less mentally fit, (b) that they will molest their children, (c) that their children will be stigmatized by their peers, and (d) that their children are more likely to become gay or lesbian themselves (Falk, 1989; Kleber, Howell, & Tibbits-Kleber, 1986; Rivera, 1987). However, previous studies have revealed no significant association between sexual orientation and psychological characteristics relevant to parenting (Falk, 1989; Kleber, Howell, & Tibbits-Kleber, 1986; Knight, 1983; Patterson, 1994).
I have endured many things to keep peace, and for the best interest of my child. So this is my personal testament and commitment, to end misogynistic bullying. This is my call to America's policy maker, legislators, and people of power to lay down conservative bias and stop destroying families and the lives of those involved. Before, I never understood, the reason for suicide. The recent bullying-suicide victims has opened the eyes of America, what happens when a mother is backed in to similar corners screaming for help?...
For full article details visit: http://www.williamapercy.com/wiki/images/Custody_Rights_of_Lesbian_Mothers.pdf
http://www.ibiblio.org/gaylaw/issue6/Mcneill.htm
*UPDATE* May 7, 2013
The last update on this blog was made exactly 2 years ago...Tons of things have transpired and I have been pushed to write more and bring an update. Summer 2011 I was denied the right to see my child by his father because the father didn't like the notion that I required him to aid in the participation of transporting my child to or from Louisiana during visits with me, his mother. The rationale that he provided was, "he's going to camp'. Needless to say my son didn't get to spend his summer with me. I had no representation or support regarding the legal matters and again I was forced to sit on my hands. October 2011, I met with a lawyer in La. whose information I acquired from research I'd done, after the consultation, I went to pick up my son. His father and I sat down and attempted to come to a mutual agreement regarding visitation, taxes, and transporting my son during visits. Satisfied with the outcome and finally some consensus, I hugged his father. That opened Pandora's box and led to the disclosure of the real reason that a petition of custody was filed: "I didn't like what you were doing, and you didn't give me an opportunity to take care of you and my son." Once revealed and confirmed, I redirected the latter part of that statement..." I didn't give you a chance to beat and cheat on me like you did your wife...I wanted better for my son and myself and that environment wouldn't have been conducive to anyone's success or growth.
With Pandora's box now open, my son's father decides that he wants to confess his love for me, he begin to call and text daily, not to discuss information about our son but to emotionally "cheat" on his wife hoping that it would evolve physically. I begin to use those opportunities to my advantage and was able to spend Thanksgiving and Christmas of 2011 with my son. Something I hadn't done in 2 years. I was overwhelmed with Joy as things finally seemed to be looking up for everyone. My son was then in 7th grade, doing well in school, and his father for what it was worth, had allowed my continuum of care for my child. I was able to see my child Easter of 2012 and was able to have him for the entire summer of 2012. All of this was contingent on my allowing and engaging his fathers phone calls. As the summer winds down, I asked my son to write 3 letters, one to me, one to himself, and one to his father. Those letters revealed that my son loves me and himself but "hates" his dad, because of being called stupid, and hit on in the most extreme ways...I even learned that he no longer calls his father "dad/daddy" he calls him by his first name. When I asked him why he disclosed that he couldn't respect a man, that doesn't respect him.
Lets jump now to Fall 2012 my son's 8th grade year. He's playing football doing pretty well. There is clearly some tension between he and his father but nothing has been done to address it. My son decides that he no longer want to take the medication that was given to him by his father and step father for ADHD because he doesn't like the side effects of the medication. There was no re-precaution for making this decision nor was there any follow up with a physician. In November, my son who has been placed with his father because his lifestyle was more stable than my lesbian lifestyle, went back to live with his alleged lesbian aunt and her family because, my son's father had had enough of my son's misbehavior and he was "done". My initial response you're done....with what? The son that you cared enough about to disrupt the life he had grown accustomed to living? Since November my son has been expelled from school twice and has now been suspended from the alternative school for the rest of the year. On yesterday May 6, 2013, I receive a call from my son's aunt who stated, "You can have him back now, because we have done all we could do to help him". I informed her that the issue is that his father hasnt done anything for him but disrupt his life. So now, I can have my damaged unfixable son back??? Indicating that I lost him in the first place and because he cant be fixed you want to return him to sender? My son is not a Wal-Mart item...but as mom, I will attempt to save my son once again...The Fight Continues....!
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