Breaking Up Is Hard To Do
Dear Friend of NCLR,
Last Friday, we received a devastating decision from the Utah Supreme Court, holding that non-biological parents have no standing even to seek visitation with their children. The majority opinion now makes it virtually impossible for a co-parent to ever be granted an ongoing relationship with a child that he or she helped raise unless the biological parent consents to that ongoing contact. Unfortunately in this case, the biological mother did not give her consent.
It is a simple fact: bad break-ups happen. We've all shared heartache and heartbreak with our friends, taken sides, offered our couches and guest rooms as refuge, and we've acted as matchmakers when our friends were ready to move on.
It's also a simple fact that break-ups are painful. What is first a private dispute becomes a rift between friends. When courts and judges become involved, that rift grows larger and unwieldy, and can damage the hard-won protections of countless LGBT families. This is even more painful when children are involved.
We spend enormous resources to have our families recognized and protected, but in the midst of tremendous legal accomplishments, many families still face huge legal hurdles. And sometimes the enemy is not a homophobic judge or institution, but our ex with whom we were once madly in love. When we end our relationships in bitterness and when we use homophobic law to further our personal interests, it endangers all LGBT families. A bad break-up which evolves into a custody dispute could threaten the legal gains in many states, as well as create harrowing precedents in states where family protections do not exist, such as Utah and Ohio. Roughly half of NCLR's docket consists of representing non-biological parents in precedent-setting custody disputes.
One of the most profound moments I've had in my tenure at NCLR was representing a co-parent in Ohio, Marla Liston. After sixteen years, Marla and her partner ended their relationship. At the time, they had a three year old son, but after their break up, Marla's rights as a parent were challenged in court by her former partner. The last time Marla visited her son, it was on Mother's Day. He was four years old.
In 1997, the Ohio Appellate Court dismissed Marla's motion for visitation, ruling that she was not a "parent" as defined by the Ohio Revised Code. The Court also dismissed the argument that the non-biological mother had a constitutionally protected relationship with her son and that the son's interest in continuing his relationship with her was also constitutionally protected. The decision read, "No United States Supreme Court case, nor our Ohio Supreme Court, has extended this protection to include family relationships stemming from a homosexual union."
Six months later, Marla called me in tears. She had been shopping downtown, and emerged from a store to see her son on the street. He was sitting in a stroller, and he wasn't with his other mother, but with two women who were once family friends. When Marla met her son's eyes, she saw instant recognition. He started calling for her, "Mommy," repeating her name over and over again, each time his voice louder and with more urgency. Her former friends steered the stroller away, but Marla rushed towards them and raised her hand in an attempt to stop them for just a moment. She knelt down to her son and said, "Mommy can't be with you right now, but I am always with you and I will always love you."
Marla hasn't seen her son since.
That was ten years ago, and I truly believed the days of that kind of loss were behind us, but the Utah Supreme Court decision serves as a powerful reminder that our work is nowhere close to being done. The latest victim of that harsh reality is our Utah client, co-parent Keri Jones.
When we bring children into the world, when we dream of creating families with our partners, we are doing so together, as couples, as families, and as a community. We educate our extended family, our coworkers, and our friends about what it means to be same-sex parents. We raise our children with great love and care, explaining to them that they have two mothers or two fathers. But this carefully constructed cocoon shatters when we rip our children from one parent, when we rob them of their full families, when we collude with homophobic laws.
I understand the enormous challenges we face and the toll exacted on our families by living in a climate often marked by intolerance, bigotry, and fear. I know we can change the climate and I know we can one day win some measure of dignity and protection for our families. But we need to examine how we ourselves contribute to the challenges faced by our community, and how we�in the middle of heartbreak�must nevertheless preserve the integrity of our families�and our own souls.