Can a Gay Dad Seek Overnight Visitation Rights?
Gay dad seeks overnight visitation rights
Q: Hi, Abby,
I am a 34-year-old gay father who lives in California and has a 4-year-old son in Idaho. I visit my son one weekend every month for four hours on Saturday and four hours on Sunday.
I live with a same-sex partner and am "out" at work, with my family and my ex-wife. However, I was not out at the time of our final divorce decree and now that my son is 4 years old, I would like to have overnight visits but my former spouse opposes his staying with two gay men.
Moreover, while I would like to push for more flexible visitation plan, I'm very concerned about doing so in a conservative state because I am nervous about risking my current visitation schedule.
Any suggestions?
Jeff
A: Dear Jeff,
Your visitation schedule does sound very limited and limiting. Moreover, given the passage of time and change of circumstances that have occurred since your divorce, the time may be right to make changes.
The key to success is obtaining quality legal advice from an attorney familiar with both Idaho law and lesbian and gay custody issues. Being a gay dad should not, in itself, prevent you from having overnight visits with your son, regardless of the state involved and despite the personal feelings of the mom. If Idaho does not yet have cases saying that, perhaps you can help get their case law up to date on the subject by seeking appropriate visitation in your situation.
Your case should not be any different in theory from that of any divorced dad seeking more time with his child now that the child is older. The practical reality, however, is that we are often called upon to present proof that our children will not be harmed by being with us, which should not be necessary but may be, given the practical realities of ingrained biases and prejudice.
The most important issues would seem to be that you be able to offer proof of your record of successful visits, your commitment to parenting since your divorce, your ability to handle more time with your child, the absence of any risk of harm to your child from being with you, your stability as a person and a parent, the closeness of your relationship with your son and similar information. It also may be important to provide basic information about your partner and what a good influence he would be on your child (to take away any hidden fears about that).
In addition, an attorney practicing in Idaho can tell you whether that state, like many others today, uses mediation to attempt to resolve custody disputes without costly contested litigation. If it does, you may have a chance to educate your ex-spouse in a nonadversarial setting that will allow you all to try overnights without going to court. That would be very much worth the effort if you have the opportunity.
Remember, the key is to find a good local attorney who knows the system and the law.
Good luck. Your son will be glad you have pushed for more time together.
Sincerely,
Abby Rubenfeld
Rubenfeld is an attorney in Nashville, Tenn., specializing in family law.
Aug. 20, 2001