Lesbian child custody battles and heterosexual divorce

By Ned Holstein, MD and Glenn Sacks

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.” But what happens in divorce and child custody matters when there’s no man around to create problems?

It can be ugly. Very ugly.

There are now many publicized cases of lesbian custody disputes. While NOW blames fathers for contentious litigation, lesbian custody cases are strikingly similar to heterosexual ones. When a lesbian mother breaks up with her partner, she often tries to drive her partner out of their children’s lives—just as some heterosexual mothers do.

Moreover, lesbian mothers often employ the same tactics. These include: denying visitation or access to the children; making dubious abuse claims; moving the children far away; and denigrating the breadwinning parent’s bond with the children.

For example, in a recent Canadian case, English lesbian mom Connie Springfield employed the tactic of permanently moving the children to another country under the guise of taking them there to visit. According to the Canadian National Post:

“Ontario Superior Court Justice Jennifer Mackinnon ordered Springfield to return to England with her two daughters, Kita, 8, and Freda, 6, whom she adopted with her long–time partner Sarah Courtney six years ago. Ms. Springfield had spirited the two children to Canada late last year in what the judge called a ‘long thought out, deceptive method of her removal of the children.’”

In another current Canadian case, two former lesbian partners, L.K. and C.L., are fighting over custody of a 5–year–old identified only as “J.” In 2002, the co–habiting couple agreed that C.L. would be artificially inseminated via an anonymous sperm donor.

The couple split up when the child was only 9 months old. Afterwards, C.L. employed allegations of abuse against L.K. to successfully scuttle the joint application for adoption that the couple had signed when they were still together.

In A.H. v. M.P., the Massachusetts Supreme Judicial 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. A.H. had been actively involved in their child’s life, but the demands of her breadwinning role left her less time with the child than M.P.

Fathers & Families penned an amicus brief in defense of A.H., fearing that the case could set a precedent that would marginalize parents to whom children are deeply attached simply because they are breadwinners.

Some lesbian mothers are so determined to purge their former partners from their children’s lives that they will employ laws against gay marriage or gay adoption in order to do it. In one Ohio case, Denise Fairchild (the birth mother) and Therese Leach agreed that they would share custody of their son, who they both parented since his birth in 1996. In order to protect Leach’s relationship with the boy, in 2001 the two women signed a joint custody agreement of the type approved by the Ohio Supreme Court.

When the relationship soured in 2005, however, Fairchild decided to exclude Leach from the boy’s life, arguing that Ohio’s ban on same–sex marriage is grounds for denying Leach shared custody.

In the Wheeler case in Georgia, Sara Wheeler, a one–time gay rights activist and advocate, argued that it’s her “right” to drive her former partner out of their son’s life. According to the Associated Press:

“Wheeler, 36, and her partner, Missy, decided to start a family together and share the Wheeler last name. In 2000, Sara Wheeler gave birth to a son, Gavin, through artificial insemination. Two years later, they decided Missy Wheeler should adopt the child and legally become his second parent…

“Sara and Missy Wheeler had split by July 2004, and Missy was fighting for joint custody of the boy. … [Sara Wheeler is] now doing something she once would have considered unthinkable—arguing that gays don’t have the legal right to adopt children.”

Similarly, in Jones v. Barlow in Utah, Cheryl Pike Barlow and Keri Lynne Jones agreed to have a child together, raised the girl together as a couple and gave the child both of their surnames. After they split up, Barlow, the birth mother, refused to allow Jones to have contact with their now 6–year–old girl and moved the girl from Utah to Texas.

Having renounced her former sexual orientation, Barlow argued that Jones should not be allowed contact with their child because she is gay. The Utah Supreme Court ruled in her favor last year.

When mothers drive fathers out of their children’s lives after divorce or separation, people often assume that the ex–husband must have harmed her or done her wrong, so “no wonder she’s angry.” These lesbian cases contradict this, and instead buttress the fatherhood movement’s claim that mothers sometimes try to drive decent, loving fathers out of their children’s lives.

Kelly Jordan, a Toronto lawyer who is the former chair of the family law section of the Ontario Bar Association, says cases like the Springfield/Courtney dispute and others are “all very new.”

Actually, for dads, there’s nothing new about them.