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Dissolving a Straight Marriage

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Dissolving a Straight Marriage
chapter 10  | Going Separate Ways |  387
if you’re the person who pays support, the court might decide that your
partner’s generosity means you have more money to pay child support.
Caution
Failure to support your children is a crime. In all states, whether you
were ever married or not, you can be prosecuted criminally for failing to pay child
support. It also doesn’t matter whether you’ve separated or actually divorced.
Must You Pay Child Support If Your Ex
Prevents You From Visiting Your Kids?
Suppose your ex-spouse refuses to let you have the court-ordered parenting
time you’re entitled to. Can you retaliate by refusing to pay child support?
No. The children have a right to support no matter what. A court may
grant a reduction, but don’t count on it. However, you probably can seek
reimbursement from the custodial parent for costs incurred in trying to
exercise your parenting rights.
Dissolving a Straight Marriage
If you are going through a divorce from a straight marriage, all of
the basic rules about money, property, debts, and kids described in
“Dissolving a Gay Marriage,” above, will apply to your breakup—except
that you won’t have the worry about federal tax issues, because your
monetary transfers will be nontaxable. “Officially” your sexual orientation
should not matter—any more than having an opposite-sex affair should
matter. But, life isn’t that simple, and depending on how your spouse
reacts to your coming out and depending on where you live, your sexual
orientation may well matter a great deal.
Here are our suggestions on how to handle a divorce when you’re
coming out. As you will see, most of our suggestions aren’t technically
“legal,” because most of the problems are not really legal ones. Rather,
they are strategic suggestions on dealing with the very real human
388  |  A Legal guide for Lesbian and Gay Couples
emotions of anger, bigotry, and irrationality that formerly married
lesbians and gay men often face.
Issues of Money and Property
Your sexual orientation really shouldn’t matter when it comes to dividing
up the house or paying the debts, but it may well come up. Mostly it’s a
matter of the straight spouse playing on the guilt of the formerly closeted
spouse, or banking on the bias of the judge in staking out an unfair
claim on money or property. If this is happening in your divorce, think
through whether the claims have any likelihood of succeeding, and also
what it could cost you to fight these claims. When figuring out the cost
of the fight, don’t ignore the risks to your job, or your extended family’s
treatment of you, nor the impact such a fight can have on a new romantic
relationship.
You also will need to get educated about what the legal process will
involve, and what discretion the judge actually has in your case. We
always urge our readers to fight hard to avoid the negative effects of
homophobia, but we are also mindful of how costly these fights can be
to the individual warrior! We also encourage you to slow down in your
decision-making process, as we’ve seen many of our gay friends “throw in
the towel” way too early out of a sense of guilt for having gotten married
in the first place, and then regret those decisions later on. Counseling—
for both you and your ex, and possibly jointly—can be extremely valuable
in these struggles.
Sexual Orientation and Custody
An increasing number of courts—and even a few state legislatures—have
held that a parent’s sexual orientation cannot, in and of itself, be grounds
for automatic denial of custody. Today, most states require that the person
opposing custody by the gay or lesbian parent show an “adverse effect”
before a parent’s sexual orientation or relationship can be used to restrict
custody (or visitation, discussed below).
But it is still fair to say that many judges are ignorant about, prejudiced
against, or suspicious of gay and lesbian parents. In 1998, for example, the
chapter 10  | Going Separate Ways |  389
supreme courts of both Alabama and North Carolina denied custody to
parents for the sole reason that the parents were gay. Similarly, the Missouri
Supreme Court ruled that a homosexual parent is not automatically unfit
to have custody, but denied a lesbian mother custody on the ground of
“misconduct”—living with another woman. (J.A.D. v. F.J.D., 978 S.W.2d
336 (1998).) And in Idaho a few years ago, a trial judge awarded sole
custody to the former wife of a gay man. During the parties’ marriage the
husband was the primary caretaker of the children, and after the divorce
the parties shared custody cooperatively until the father became involved
with another man. The trial court also held that the father may have
visitation with the children only if he does not live with his male partner.
The case is currently on appeal to the Idaho Supreme Court.
On the other hand, a gay father in Louisiana was recently awarded
primary custody of his children over the mother’s objections that his
“homosexual lifestyle” was detrimental to the kids, and a Michigan court
refused to allow evidence of a lesbian mother’s purported imposition of
her lesbian lifestyle on her daughter, and left custody with the mom.
A Georgia appeals court reversed a decision by a trial court changing
custody from a lesbian mother to the father based solely on the fact that
the mother was living with another woman. The appeals court held there
was no evidence of a change in circumstances or of any adverse affects on
the child, and that the change in custody was not warranted.
In a mixed ruling in Virginia, an appeals court ruled that a gay father
couldn’t be denied joint custody or have his visitation limited because of
his sexual orientation, but also upheld the lower court’s requirement that
the father’s partner not spend the night when the children visited.
It’s possible that a custody issue can be brought to court by someone
other than a parent, and against both parents’ wishes. Consider the case
of Sharon Bottoms, the lesbian mother from Virginia who lives with
her lover. Sharon’s mother sued for custody of Sharon’s son Tyler, even
though Sharon wanted custody and her ex-husband agreed that she
should have custody and even testified on her behalf. Nevertheless, the
trial court granted custody of Tyler to his grandmother, holding that a
lesbian is presumed to be unfit to have custody of her child if she lives
with her lover.
390  |  A Legal guide for Lesbian and Gay Couples
National lesbian and gay organizations helped prepare Sharon’s appeal,
and she briefly regained custody of her son. Sadly, the Virginia Supreme
Court ruled that “active lesbianism practiced in the home” could
stigmatize the child, and returned Sharon’s son to the custody of Sharon’s
mother. (Bottoms v. Bottoms, 457 S.E.2d 102 (1995).)
Some Tips on Custody Cases
If you are involved in a contested custody case because of your sexual
orientation, you’re in for an expensive process. If you can do some legwork,
you’ll be more connected to the case and will save some lawyer’s fees. For
example, don’t pay your lawyer $300 an hour to do background preparation
you can do yourself. It’s often helpful if you give your attorney a list of
friends, relatives, children’s teachers or day care workers, neighbors, clergy,
and anyone else willing to speak on your behalf. Outline what each person
is prepared to say and who is likely to impress the judge. That will help
your attorney decide whom to call to court. You can also help by gathering
records—like school or medical records—that your lawyer needs.
In some custody cases, expert witness testimony is necessary.
Expert witnesses are psychiatrists, caseworkers, psychologists, and other
professionals who testify in order to educate judges and juries about issues
that require specialized knowledge to decide. Experts are particularly
important for a gay parent. An expert can evaluate your home environment
and testify about your fitness as a parent, your child’s health, welfare,
relationship to you, and relationship to the home environment.
But most important, an expert can educate the judge about lesbian and
gay parents in general. Attorneys who regularly handle custody cases for
lesbian and gay parents say that overcoming myths and misconceptions
about homosexuality—particularly that gay people are ill, perverted,
abnormal, and child molesters, and that their children will be harassed at
best and become gay at worst—is the biggest obstacle to winning.
You will need a great deal of support if you are going to engage in a
court struggle, and no one can give it to you better than folks who have
been there. Use the resources discussed in Chapter 11 to find a local
chapter 10  | Going Separate Ways |  391
support group for lesbian and gay parents and meet people who have
dealt with custody issues.
In most custody cases, judges try to cut through accusations and
arguments to learn the facts and decide what’s in the child’s best interest—
and most judges at least try to be objective. While convincing a judge that
your sexual orientation is irrelevant may be an uphill battle, it’s possible.
Parents caught in custody battles often think about moving to a part
of the country where judges are likely to have liberal views. San Francisco
can seem like paradise to someone in Oklahoma. Although you may take
your child to a new state unless a court order says otherwise, a law called
the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) may
limit a judge’s power to make a custody decision in the state to which you
move. For instance, if you moved to San Francisco from Oklahoma, the
San Francisco judge wouldn’t have the authority (called “jurisdiction”) to
hear your custody request and would send you back to an Oklahoma court.
One purpose of the UCCJEA is to stop parents from moving about
in a search for a friendly court. So a court that is asked to decide a custody
issue must look at certain specific factors under the UCCJEA to see
whether it has jurisdiction, and the judge will be reluctant to take the case
if it looks like the parent relocated just to find a sympathetic court. If you’ve
moved, you’d better be able to convince the judge it was for a better job and
a better life for your kids, not to find a more enlightened court.
If you and your spouse each begin custody proceedings in different
states, the UCCJEA determines which state has jurisdiction. This will
probably be the state that you moved from. If your spouse can show that
you moved just to find a friendly court, you might even get fined or have
to pay the other parent’s attorney fees and travel expenses.
If a court in one state has already issued a child custody order, your
chance of persuading a court in another state to modify that order is
extremely slim. And if you take the child out of state in violation of the
order, you may be guilty of kidnapping.
The UCCJEA can work for both parents. Although it greatly limits a
gay or lesbian parent’s power to move to a more favorable state, it also limits
the nongay parent’s power to take a child to a conservative jurisdiction,
hoping to get a custody change because the other parent is gay.
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