Child Custody in Polyamorous Families Part 5
New legal moves make the case for poly families fitting best interest of kids.
Posted May 22, 2017
This fifth and final blog in the series on children in polyamorous families focuses on custody. The first looked at age-dependent experiences and why the kids are in such great shape, and the second detailed some of the advantages and disadvantages in poly family life. Third in the series came poly families’ strategies for dealing with the disadvantages, and the fourth blog in the series provided a sneak peek into the findings of my ongoing study of polyamorous families. All of these blogs are grounded in the findings of my ongoing Polyamorous Family Study that began in 1996. You can find a summary of the first 15 years of the study in my fist book, The Polyamorists Next Door. This blog also includes data from my fourth and ongoing wave of data collection that began in 2016.
In terms of child-custody, polyamorous families are in a very similar position to what parents in same-sex relationships prior to the 1990s. Gay parents then and polyamorous parents now are thought to be rare and strange aberrations of parenting that must of course be dangerous for children. Deeply embedded in family law, most legal professionals made the automatic assumption that any sex and gender minority who was also a parent must be problematic as a parent, because being a sex or gender minority was in and of itself pathological. Custody rulings did not begin to change until the 1990s when courts began to judge parental fitness and the best interests of children on a range of issues, even if the parent was in a same-sex relationship. These legal changes, combined with decades of sociological and psychological research on gay families that empirically demonstrated that their children are in similar shape to kids from all sorts of other families, downplayed parental sexuality and culminated in the US Supreme Court’s legal recognition of same-sex marriage in 2015.
Even so, the historic ruling left current laws in place that limit the number of parents legally recognized to two. In almost every case, if a child already has two legally recognized parents and a third person wishes to be recognized as a parent, one of the other two must terminate their parental rights in order for the new parent to adopt the child.
Best Interest of Children
Current legal standards determine child custody by establishing what is in the best interests of the children. In many cases, legal professionals use empirical evidence to investigate the child’s situation and determine the best interests. Unfortunately, when it comes to sex and gender minorities, sometimes legal professionals forget their reliance on empirical evidence and instead come to rely on personal religious or moral beliefs. If a Guardian Ad Litem, Child Protective Services case worker, or family court judge is able to see the unusual situation for what it is empirically then they are often able to make a determination based on other factors, besides parental sexuality. If, however, the legal or child welfare professional is unable to see beyond the unconventional sexual or gender expression, then they will most likely see it as against the children’s best interest and rule in favor of the other party.
Sources of Challenge
In my research, I have found three primary sources of challenge to polyamorous families’ custody of their children. While the research is ongoing and my sample is not yet large enough to provide even a rudimentary statistical analysis, at this preliminary stage it appears that an ex or soon-to-be ex-spouse is slightly more likely to seek custody of children from a polyamorous family, followed by a grandparent, and then the state at a distant third.
1. Other Biological/Legal Parent
During or after some divorces, polyamory can become a significant issue that impacts custody of children. Sometimes a spouse who tried polyamory and did not like it (either for real at the time or strategically in retrospect) makes it an issue in the divorce. At other times, an ex-spouse finds out that their ex is in a polyamorous relationship and re-opens a custody agreement that was previously settled. Either way, the other parent often alleges that the polyamorous relationship is not in the best interests of the children. Often the non-poly parent argues that they should gain greater or full custody, and/or that the polyamorous parent should not be able to be around polyamorous people while with the child.
If they are informed of the polyamorous relationship at all, grandparents are often excited to welcome their extended polyamorous relations because it often means grandchildren. Generally polyamorous people do not disclose their romantic relationships unless/until the relationships are serious enough to merit familial recognition. Sometimes families of origin find out in other ways besides direct disclosure, either when someone accidentally or intentionally “outs” the poly family by revealing their status or when circumstances or an accidental direct reference from the poly family makes it somehow obvious that the multiple adults are romantically connected. In these cases, it is more likely that it will lead to some potentially awkward confrontations. These confrontations are especially problematic and can take on legal aspects if the grandparent is a devout practitioner of a religion that requires monogamy and heterosexuality. My preliminary findings indicate that conservative religious grandparents, who believe that their adult child’s polyamorous lifestyle will corrupt or morally endanger their grandchildren, can be potent legal adversaries for polyamorous families. This is especially true when the grandparents are wealthy, or at least have more money than the polyamorous family.
3. State or Institution
It appears to be rare for Child Protective Services (CPS) to take a child away from a polyamorous family solely for the fact that the family is polyamorous. In the cases of which I am aware, CPS removed children for other reasons unrelated to polyamory, and the parent(s)’ polyamorous relationships either passed un-noticed by the authorities (if the parents were lucky) or became a compounding factor that almost always proved disadvantageous. Again, religion played a factor, and CPS officials and family court judges who held (and even sometimes openly espoused) conservative religious beliefs appeared to be disposed against polyamorous families. In some instances, CPS workers have documented polyamory as a negative aspect of the family, using it as proof that the initial or presenting issue went deeper and warranted additional investigation and removal of the children. One family court judge cited the Ten Commandments in his decision to limit a polyamorous parent’s custody, and others have mentioned the polyamorous relationship negatively and threatened to pursue independent legal action (prosecution for adultery) but did not follow through with the threat.
Sex and gender minorities have generally not fared well in court when others challenge their custody of their children. People in same-sex relationships struggled with legal custody for many years, and it is only in the last 10 years that gay and lesbian parents’ custody has become significantly less related to their sexuality. In many (perhaps even most) jurisdictions, family court judges have recognized parents in same-sex relationships on the same level as other-sex relationships. Legal recognition of same-sex marriage appears to have cemented this trend, and further prosecution solely on the grounds of same-sex desire seems incredibly unlikely.
While same-sex couples in the U.S. bask in legal recognition, other sex and gender minorities are not nearly as secure in their ongoing legal rights and custody of their children. People have been denied custody of their children on the basis of being transgender, kinky, or polyamorous. There are far fewer legal protections for folks in those categories for a host of reasons, primary among them that they are not recognized as legitimate sexual orientations.
For the first 15 years of the study, I was not aware of any families who retained custody of their children once their polyamory was exposed and challenged in court: The few poly families I spoke with or read about whose custody was challenged on the grounds of polyamory pretty much always lost custody of their kids. The most public of these cases was April Divilbliss’s loss of her child to her ex-husband’s mother after Divilbliss appeared on an MTV program with her two boyfriends to discuss their polyamorous triad.
In the last five years, however, respondents in the Polyamorous Family Study are showing signs of social change in terms of their interactions with legal institutions. Parents in the study are reporting fewer challenges, and when they are interacting with Child Protective Services professionals, the CPS workers seem more informed and less alarmed when the word polyamory comes up. Some of the parents in my study even report that judges are listening to empirical evidence that suggests polyamorous families can provide children with loving, stable, and supportive homes.
Recent judicial decisions indicate that the trend towards greater legal recognition of multiple parenting goes beyond my own sample to the larger U.S. legal community. In New York a judge awarded custody to three parents—a previously married female/male couple and their female partner—who had intentionally become pregnant and raised a child together for the first 18 months of the child’s life. When the married couple divorced and the two women established their own life together, the ex-husband sued for custody. The judge noted that all three had intended to have and care for the child, and all three of the adults functioned as parents, so all three of them should have custody. Courts in D.C. and Md. are also in the process of considering expanding legal recognition of parents beyond two adults.
Benjamin Schenker practices collaborative family law in Pa. and Md., and has been carefully watching how the courts deal unconventional or blended families for many years. When I asked Schenker if he thought that judges were increasingly willing to consider alternative parents, he responded that the judges “may be legally obligated to ignore them. For instance, in Maryland, before de facto parenthood was established in Conover, a third parent in Maryland would have to show that the biological or adoptive parent(s) were 'unfit.'" Schenker sees reasons for people in alternative and expanded families to be excited about coming legal changes, even though “there are undoubtedly going to be more challenges going forward. Appellate courts or legislatures might drastically change things. Reliance on the courts can be dangerous when determining parents for a child. The safest bet is to try and rely on negotiation instead of litigation; plan for the worst when things are going well.”
Diana Adams, a lawyer serving New York’s LGBTQ+ families for the past 10 years, sees a significant cultural divide between red and blue states when it comes to the legal treatment of polyamorous families. “One of the greatest challenges I see facing poly parents in these cases is the incredible subjectivity of the 'best interest of the child' standard.” When litigants are not able to reach a settlement, a family judge at the county level attempts to discern “which party is telling the truth, exercising good parenting judgment, and grounded in a household that is healthy for a child.” Inevitably, these judges are influenced by their religious and personal values, as well as their previous exposure to non-monogamy (consensual or not). Because conservative and rural areas are more likely to have conservative judges, Adams has found that polyamorous families are often at greater risk in those areas: “I have litigated throughout New York State, but I win south of Westchester in the progressive New York City region, and lose much more often in northern rural counties. I consult on these cases nationwide, and a search of zip code to discover whether a county is predominantly Republican or Democrat is unfortunately a good predictor of the difficulty the poly parents will face. As cultural divides in the US deepen, so does the gulf between conservative rural judges and open-minded judges in blue counties. The progress we are seeing for poly parents in custody cases are not shared equally nationwide."
While the long-term status of polyamorous families’ legal custody of their children remains in flux, it is abundantly clear that social and medical changes are going to force courts to re-examine legal parentage and custody. How these re-examinations turn out will ultimately depend on the judges and political players at local, regional, and national levels.