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In a highly-publicized new
decision, a Virginia appeals court ruled Tuesday in favor of a lesbian
social/non-biological mother in her custody battle against her child’s
biological mother. The former couple, Lisa Miller and Janet Jenkins, joined in a
same-sex civil union in Vermont in 2000 and had a child together in 2002. After
their breakup, Miller, the biological mother, moved to Virginia with their
daughter Isabella, won sole custody, and excluded Jenkins from the girl’s life.
Opponents of gay marriage, gay
activists and the media have focused almost exclusively on the new decision’s
impact on same-sex marriage. Lost in this, however, is the fact that the case is
a textbook example of one of America’s greatest social problems—the refusal of
many divorcing mothers to allow their children to continue to have a
relationship with their former spouses.
During Jenkins’ and Miller’s same sex-union Jenkins did everything she could do
to be a good parent to their child. She was involved with the pregnancy from the
beginning, was present in the delivery room, worked to support the family, and
played an important role in Isabella’s life. Following their breakup she was
granted visitation rights but Miller refused to comply. After Tuesday's ruling,
Miller's side vowed to further appeal the case to deny Jenkins access to the
girl. Miller says she does not want Jenkins to have any visitation rights, and
has not allowed her to see their daughter since 2004.
Increasingly, other lesbian
social mothers are suffering similar injustices. For example, in the A.H. v.
M.P. case currently before the Massachusetts Supreme Judicial Court, the
trial court ruled against A.H., a lesbian social mother, who had been the
primary breadwinner for her partner M.P. and their young son. After separation
M.P. sought to minimize A.H.'s role in the boy’s life, arguing that since A.H.
was not the child’s primary caregiver, she should not receive joint custody of
the boy.
The heartache Jenkins and A.H.
feel is very familiar to many divorced or separated fathers. According to the
Children's Rights Council, a Washington, DC-based children's advocacy group,
more than five million American children each year have their access to their
noncustodial parents interfered with or blocked by custodial parents.
In a study published in the
American Journal of Orthopsychiatry, 40% of divorced mothers admitted that
they had interfered with their ex-husband's access or visitation, and that their
motives were punitive in nature and not due to safety considerations. A study of
adult children of divorce conducted by Glynnis Walker, author of Solomon's
Children: Exploding the Myths of Divorce, found that 42% of children who
lived solely with their mothers reported that their mothers had tried to prevent
them from seeing their fathers after the divorce. According to research
conducted by Joan Berlin Kelly, Ph.D., author of Surviving the Break-up,
50% of divorced mothers claim to "see no value in the father's continued contact
with his children after a divorce."
What’s needed for both lesbian
social mothers and biological fathers is a rebuttable presumption of shared
custody after a divorce or separation. Under this presumption, as long as both
parents are fit, they will both have the right to share equally in raising their
children. The fitness requirement excludes parents who have been physically
abusive, who abuse drugs or alcohol, or who have significant mental disorders.
These presumptions do exist in some states, but
they are generally weak and too easily evaded. Misguided women’s groups such as
the National Organization for Women vociferously oppose such presumptions. This
year NOW successfully rallied its forces to oppose shared custody legislation in
Michigan and New York.
The problems heterosexual mothers
create for their children and their ex-partners have been largely ignored,
partly due to misleading stereotypes of abusive and/or “deadbeat” fathers. Today
fit, loving, lesbian social mothers like Jenkins and A.H. and their children
face similar mistreatment. Ladies, welcome to the club.
This column first appeared in several Vermont newspapers,
including the Rutland Herald, Times Argus and others (12/10/06).
Jeffery
M. Leving is one of America's most prominent family law attorneys. He is the
author of the new HarperCollins book
Divorce Wars: A Field Guide to the Winning Tactics, Preemptive Strikes, and Top
Maneuvers When Divorce Gets Ugly. His website is
www.dadsrights.com.
Glenn
Sacks' columns on men's and fathers' issues have appeared in dozens of America's
largest newspapers. Glenn can be reached via his website at
www.GlennSacks.com or
via email at Glenn@GlennSacks.com.
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