Custody Fights Between Lesbian Partners

I live in Ohio and I’m proud to say that although Ohio is basically anti-gay in its laws and legal precedents, the Ohio Supreme Court recently upheld a custody agreement between two lesbian mothers.

Now the court is considering another case between lesbian partners. Both cases involve long-term relationships in which children were born and raised and in which equal parenting agreements had been written and agreed to by both parents. Then the couple breaks up and the birth mother suddenly decides that her child(ren) would be hurt by another mother hanging around, even though that is what the boy(s) were used to and had come to depend on.

A recent issue (December 15, 2008) of Newsweek Magazine ran a story about a similar case–not in Ohio–with a twist: the birth mother has become a “born-again” Christian and no longer identifies herself as a lesbian. So she adds religious convictions to her argument. (For a view of the other side, read this Christian-oriented article and interview with the biological mother.)

These are just a few of the cases that are popping up all over the country. At stake are the children’s rights to have continued contact with both persons they have always identified as their parents. It is interesting that even in states that have anti-gay marriage amendments, many courts are upholding any previous parenting agreements made by the two parties. Even though you could argue that the non-biological mother’s case is weak because she never legally adopted the child(ren).

In a society where familial bonds are weaker than ever, it is always sad whenever sole custody along with the ability to restrict visitation is granted to one party. This is as true in heterosexual relationships as in homosexual ones. Over the past couple of decades, heterosexual couples are being forced into joint custody agreements, which many mothers have fought, believing that it is in the best interests of the children to only have one “home” and one primary parent (namely, the mother). This is as unfair to fathers as it is to the lesbian non-biological mothers in the lesbian relationships.

I should say here that I was one of the mothers who had sole custody and who would have been terribly upset if the judge had granted my ex joint custody. But I would have gotten over it, just as I got over the times when he had them for holidays and vacations. I think our children would have adjusted as well. (I still think that it’s better for one parent to have primary custody so that the child can always go to the same school. But when the father lives in the same school district, this argument loses its validity.)

It is not just the rights of the children that we are talking about, after all. We are also talking about the rights of both parents to continue to play a role in their children’s lives. I believe that a child’s life is richer when he or she has access to both parents. There were times when I resented the time my children spent with their father, but I knew that they would be better off if they had a close relationship with him as well as with me. As they’ve gotten older, I’ve come to see that I was right. He fills in the blanks I can’t fill.

When visitation is restricted or even forbidden it as if the court is saying that the child only needs a certain amount of love in her or his life. In my experience, children need all the love they can get. As do we all.

Legislating Morality

The problem with laws like Proposition 8 (see my last post) is that they are an attempt to force some people’s morality on everybody. Legally, all citizens should have access to the full array of civil rights that the law deems essential (although these can vary according to jurisdiction). One of those rights is that of being able to enter into contracts. Marriage is one of those contracts. The state requires that the marriage contract be exclusive; that is, that it is only between the two parties who are applying for a license and that they are free and clear to enter into the contract. (Otherwise it would be polygamy or bigamy.) Those who are against gay marriage want the contract to be even more exclusive: that it is only between a man and a woman. But their arguments are not legal ones, they are all about their own moral principles.

It makes for a messy society, but moral standards are debatable. They are also make for highly emotional confrontations. The law is supposed to be above emotions. In a way, it is not supposed to have a heart. Laws are enacted for the common good. How is gay marriage bad for anyone except for those who are against it? The law does not force all gays to get married. Nor does it force a person who is against gay marriage to perform the wedding ceremony. If it offends your moral senses, then don’t do it.

The same argument could be made for abortion. There is no definitive proof or consensus about when a fetus becomes a person. It’s a matter of personal belief. If you believe that abortion is murder and a sin, then don’t get one. But don’t force me to have a baby I’m not prepared to have. Likewise, we can’t legislate away gay marriage just because we personally are against homosexuality. Because that’s what Proposition 8 and others like them are really saying: that the majority of the people think that homosexuality is wrong. They wish that it would just go away. And they mistakenly believe that if they deny rights to homosexuals, it will.

If the proponents of Proposition 8 were really concerned about the validity and sanctity of marriage, they should put their efforts into marriage-strengthening programs like pre-marital and marital counseling. They should reach out to married people in their churches and their communities. They should look out for danger signs like financial distress and abuse. Many churches and organizations already do this. But even those that do find that it is not so easy to help people who don’t see things the same way that they do. If we can’t force our morality on another person, one-on-one, then what makes us think that we can force it on a whole society? Or that we even have the right to do so?

In my opinion, laws like Proposition 8 are the lazy way out to deal with a societal problem. In this case it is what to do about gays. Rather than deal with homosexuals as individuals or try to understand or help them, anti-gay people vote in laws that they think will do away with the problem. What a surprise to find out that it doesn’t help! There will still be gays in every segment of society. They will still want to do all that straight people can do. Their desire to have what straight people have will not go away because a law has been enacted.

I think that those who are against gays having it all are fighting a losing battle. There are already signs that society is getting used to the idea of gays as “normal” people. Even though only three states (Connecticut, Massachusetts and California) had given gays the right to marry (and one of those is attempting to rescind that right), many other states are at least considering giving gays the right to enter into civil unions. (For the difference between marriage and civil union, see here.) Hopefully this will become nation-wide and pave the way to full equality under the law.