Can You Be Denied Custody in Indiana for Being in a Same-Sex Relationship?
Leslie Cooper, staff attorney with the American Civil Liberties Union's Lesbian and Gay Rights Project. Feb. 12, 2002
Q: Hello, Leslie,
I have been in a relationship with a woman who has two children and is going through a divorce. Her husband and father are threatening to deny her custody of her children, with no visitation rights at all, if she stays with me.
Angie is 28 years old, lives in Indiana and has been married for six years. Her children are 5 and 2 years old. She has been the sole support for her family throughout her marriage. Her husband didn't decide to get a job until she left him for me. Now she has moved back in with him and the kids to make the divorce go easier. She is afraid of losing her kids.
Angie's father tells her that he knows the judge and will hire the best lawyer possible to make sure that she loses her kids if she remains with me. He is telling her that she needs psychiatric help because she's not gay.
This has put a real strain on our relationship, so much so that we have split up so that she has a better chance keeping her children. Her children love me to death and I love them. They ask about me all the time and it annoys her husband. I know that our splitting up has helped a little. She and her husband don't argue as much now. But I can't help but feel rage at what her father is doing to her.
How can I help her? Who can help us?
Thank you,
Marcy
A: Dear Marcy,
Unfortunately, Angie's experience is not uncommon. When lesbian and gay parents are in custody battles, their ex-spouses often try to use their sexual orientation against them.
The good news is that appellate courts in Indiana have rejected such discrimination, holding that a parent's gay or lesbian orientation alone does not make him or her unfit to have custody, and that it only becomes relevant if it is demonstrated to adversely affect a particular child.
The bad news is that there are certainly some homophobic family court judges out there who would flout the law or find some pretext to rule against a lesbian or gay parent. If Angie doesn't have a lawyer yet, she should get one. Only a local family lawyer will be able to advise her about the courts in the community and any risks associated with resuming her relationship with you.
Hopefully, after obtaining the advice of counsel, Angie will ultimately have to weigh the risks and decide for herself whether to continue living with her husband while the divorce is pending. But if her plan is to get back together with you after the divorce is done, she should know that the issuance of a divorce decree is not necessarily the end of the problem. A parent is allowed to go back to court to seek a modification of custody if there is a change of circumstances that adversely affects the child. If Angie is awarded custody, her husband, if he is determined, could certainly try arguing that the resumption of her relationship with you amounts to such a change of circumstances.