Can My Ex Win Custody if I Come Out?
Answered by Abby Rubenfeld, attorney in Nashville, Tenn., who specializes in family law Dec. 19, 2000
Q: Dear Abby,
Does my ex-husband has a good chance of trying a custody suit if I "come out" and he then decides our 11-year-old son is better off in a "straight" home rather than with me?
When my husband and I separated nine years ago, I moved to Illinois, where I have raised our son alone for six years and with my partner for the past three years. But my ex-husband, who lives in Virginia, is very conservative in his views of gays and lesbians raising children. And I don't want him to suddenly come and try to take our son back with him. I have been the main influence in my son's life and have been there for every substantial event in his life. His father has not made any attempt to be more a part of his son 's life than the few times a year his son flies to him to visit.
I have always felt that, although our marriage was not the best, his father was still important. And I have tried to maintain good relations with my ex for the sole purpose of encouraging a relationship between them. Is there good reason to believe that I have done everything to ensure that my custody will be upheld?
Thank you,
Stacey
A: Dear Stacey,
The short answer is that assuming your child is doing well living with you, your sexual orientation should not matter, and custody should not be changed after all this time simply because your ex finds out the truth about your sexual orientation.
The reality, however, is that an ex can file any kind of custody suit, and fighting one can cause a lot of stress and cost a lot in attorney fees.
Jurisdiction for any such action should be in Illinois, where you reside, which is undoubtedly better than Virginia on these issues. I would be careful, however, about your son's visits to his father's state, where your ex could try to get some type of emergency order from the courts while he has temporary care of him.
The best thing you can do is to be prepared. You are a good parent and are in the right. You shouldn't be afraid of defending your family. Have a local lawyer lined up, and consult with him or her soon. It is important to know the local courts, and be ready to use them if necessary.
You should also keep track of your ex's contacts with his child. If his interest is as little as you say, that should be significant to a court. If he doesn't use the visitation he has now, why should he get custody?
It sounds like you have done a good job and should be proud. Now be prepared and don't be afraid to fight back.
Abby Rubenfeld
Attorney in Nashville, Tenn., who specializes in family law
Dec. 19, 2000