Sexual minorities have traditionally fared poorly in court when family members (often an ex-spouse or parent/grandparent) or institutional representative from Child Protective Services challenge their custody of their children. Years of legal precedent have painstakingly established precedent recognizing lesbians and gay men as legitimate parents who are sometimes afforded legal rights similar to those of heterosexual parents. No such precedent exists for polyamorous families, to my knowledge.
I am an expert witness in custody cases related to polyamory and a Guardian Ad Litem/Court Appointed Special Advocate, NOT A LAWYER. What follows is not legal advice, simply my expert opinion based on my research on polyamorous families and experience with the family legal system.
When polys and other sexual minorities are embroiled in family litigation, it matters a lot which judge gets the case, in which court, and how the judge feels about the lawyers. The judge has quite a bit of latitude in family court and is ultimately driven by what the judge determines to be in the best interest of the child. If the judge feels deeply that polyamory is sinful and harmful to children's moral fitness, then no amount of discussion of the loving environment and wonders of pooled resources will sway that opinion.
If, however, the judge is open to hearing about the possibility that unconventional families can be good settings for raising kids, there are a number of useful things you can do.
1) Get an educated or open-minded lawyer who has dealt with consensual non-monogamy or at least sexual minority families. For useful referrals, check out the Kink Aware Professionals listed on the National Coalition for Sexual Freedom website, because they are often knowledgeable about polyamory as well.
2) Ask your lawyer if they know an open-minded Guardian Ad Litem in case you need a home assessment, it will be useful to have an option to suggest rather than have to go with the GAL the other side finds. Much like the judge, a GAL that has decided unconventional sexuality is inherently evil will certainly find that it is problematic for the child’s environment. If you don’t have to have a home assessment it would not necessarily be a great idea to bring it up on your own, unless your lawyer thinks a proactive evaluation would be useful in your case. But if the other side brings it up, having a GAL to suggest can make a huge difference.
3) Keep your living environment clean and well stocked with food in case you get a surprise visit from Child Protective Services (CPS). Be sure to put sex toys, pornography, and anything else that would be in appropriate for kids away where children cannot reach it. If CPS does come to your home, let them in right away. Be courteous and answer their questions honestly, but do not elaborate unless asked. In a previous blog on this site I discuss considerations around coming out as polyamorous to CPS workers or not . You may ask the CPS representative questions as well, such as what complaint brought them to your home, as well as the representative’s identifying and contact information.
4) Strategize about what to tell the kiddo(s). Some parents come out with the truth and help the kid understand that there are some private things that people only do or talk about at home or in private (ie. walk around naked, say swear words, talk about private stuff) and other things that are ok to do or talk about in the world, at school, or with grandma and grandpa. This works if the kid understands it as a private issue and not something shameful, just not for others to hear about. If this instead translates to a secret the kid has to keep, then that can be a difficult burden for some kids to bear. Other kids have no problem with the concept of privacy and do not feel it as a secret burden they have to keep. It depends on the kid and the circumstances they encounter with adults. That is the sticky point, because if the grandma or the ex-spouse makes a big deal out of it and badgers the kid about it then it does become a burden for the kid to keep the secret. In those cases, it can be better for the kid not to know so they don’t have to keep the secret. You can just be roommates who share expenses, and no need for more details than that. If the ex really wants to know, and the kid has no info other than you all are friends, then the ex will have to ask you directly. That is much better than having the kid in the middle, because it keeps adult information among the adults. That can be important when you argue that the adult sexuality is not impacting the child because it is kept separate from the kid. So how much information to give the kid depends on how old the kid is, how much time they spend around the poly family, how much the other parent/ex might badger the kid for information, and the personality of the child. Your family should discuss it among the adults and decide what to say if the question comes up.
5) Provide your lawyer with some resources if necessary. Both the National Coalition for Sexual Freedom and the Woodhull Sexual Freedom Alliance advocate for sexual minority families and can provide useful resources. With Mark Goldfeder, I co-authored an article in the Journal of Law and Social Deviance that debunks legal myths about polyamorous families, and my website offers a free copy of that article. My first book, The Polyamorists Next Door, details my 15-year study of poly families with kids. It is not a purely optimistic report, but it does ultimately decide that poly families, warts and all, can be great for kids. Also, Maria Pallotta-Chiarolli wrote a great book about her research on polyamorous families' experiences with schools in Australia that might be useful too.