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.