Queer conflicts: Mediating parenting disputes within the gay community

Georgetown Law Journal, Nov 1997 by Emnett, William Mason

WILLIAM MASON EMNETT*

Things have not been working out between Kris and Ann lately. When the two women first met and fell in love seven years ago, they never imagined that within a short period of time they would buy a townhouse and have a baby boy, Alex. Both Ann and Kris had wanted children and frequently discussed whether they should adopt or whether one of them should become pregnant through donor insemination. They decided that Kris would be artificially inseminated when she went back to school for an M.B.A., because her schedule would become more flexible and allow her to take time off to care for the baby without jeopardizing her career goals.

Along with graduate school and the baby came rising costs. With Kris not working, the couple found it harder to make ends meet. Compounding the problems, Ann felt Kris's graduate school experience was changing Kris from the person with whom she fell in love, while Kris felt Ann resented the fact that Kris was able to spend more time with Alex. Both mothers were still jubilant about motherhood, yet the personality conflicts, stress of parenthood, and escalating financial pressures strained their relationship. By Alex's third birthday, Kris and Ann had decided to separate.

INTRODUCTION

Regardless of one's views concerning the propriety of gay families and the role of gays as parents,1 it is an inescapable fact that, like Kris and Ann, gay women and men are having children and creating nontraditional families.2 Although gay families most commonly are formed when a parent brings his or her children from a previous heterosexual relationship into a same-sex relationship, an increasing number of gays and lesbians are seeking to create families through second-parent adoption.3 In addition, lesbians like Kris and Ann are turning to alternative methods of insemination so that they can experience the miracle of childbearing together.4 Yet such natural behavior as creating families and entering parenthood creates a host of legal dilemmas that remain unresolved by our legal system. Is Ann a legal parent of Alex, even though she has no biological connection to him? When Ann and Kris separate, may Ann assert custody and visitation rights? Will their family even be recognized by a court?5

Although Kris, Ann, and Alex are a hypothetical gay family, their circumstances are not unusual. An estimated eight to ten million children are being raised in gay or lesbian households.6 Despite the large number of gay families, however, family law has not incorporated these nontraditional relationships into its web of protections. When gay parents, like Kris and Ann, choose to break up,7 they are left to resolve custody and visitation conflicts on their own. The legal system, as yet, has not provided the same level of legitimacy, security, and predictability to same-sex parents as it attempts to provide to heterosexual parents.8 While the legal framework of family law gives presumptive validity to a heterosexual, divorcing parent's relationship with his or her child, "couples of the same gender ... frequently are compelled to explain or validate their relationship before an often hostile legal system when advocating for legal recognition of their families."9 In the few instances in which conflicts between same-sex parents regarding custody and visitation rights have come before courts, judges have by and large failed to maintain the integrity of these nontraditional families.10

This note considers a different avenue for gay parents: the use of mediation11 to enable gays and lesbians to resolve their custody disputes without risking exposure to the often hostile judicial system. Part I outlines the various ways the legal system has marginalized gay parents and has failed to preserve relationships between gay co-parents and their children. Part II considers the alternative of mediatingl2 visitation and custody conflicts within the gay community, noting that mediation not only provides disputing parents privacy and control over their dispute, but also enables parents to resolve their dispute within the shared values of the gay community. Finally, Part Il analyzes the pitfalls of mediating gay custody disputes and the concerns that society may have in removing these disputes from the public eye, as well as the practical difficulties posed by the need for mutual consent to enter into mediation and the lack of enforceability of mediated outcomes.

I. JUDICIAL RESOLUTION OF SAME-SEX PARENTING DISPUTES

Custody and visitation suits are the most frequently litigated controversy involving sexual orientation.13 Most of these suits, however, have arisen following the dissolution of heterosexual relationships.14 There are only a handful of cases in which nonbiological gay parents have come before courts to assert their independent parental rights after having separated from their same-sex partners.15

In resolving these disputes, courts have often refused to grant same-sex co-parents custody or visitation rights, reasoning that because the family does not fit into the one-mother, one-father paradigm of family law, nonbiological parents do not have a legally recognizable relationship with their children.16 In general, custody and visitation rights extend only to biological parents or to parents whose relationships have been sanctified by the state through marriage.17 By definition, this system leaves out gay couples-they are denied the right to marry and therefore denied presumptive rights to custody and visitation of their nonbiological children.18 As a result, gays and lesbians have been forced to petition courts for expansions of family law concepts that would incorporate protections for their families.