Child Custody Battles: The Legal Dilemma for Lesbians

Ask any lesbian and she will tell you that coming out was probably the most stressful time in her life. Stories of being disowned by family and termination of long-term friendships are common. Even when family and friends acccept you for your true self, the dynamics of each relationship changes. Now imagine, if you will, a woman in a heterosexual marriage with children making the decision to come out as a lesbian. One of the biggest concerns for a woman in that situation has always been custody of the children. Many lesbians who divorce their husbands continue to lead very closeted lives for fear of a protracted custody battle with their ex.

In July 1995, Oklahoma took a step closer to reducing the fear of losing custody of a child merely because the mother is a lesbian. The Supreme Court of Oklahoma, in Fox v. Fox, 904 P.2d66, overturned the ruling of the Court of Civil Appeals which allowed a change of custody based on the trauma that may result to the children in the future because of community members' disapproval of or disagreement with the parent's sexual orientation. It also overturned the ruling of the District Court of Cleveland County which had allowed a change of custody stating the mother was unfit because she as a lesbian.

The parties were divorced in August 1988. Custody of the two children, ages 2 and 4 at the time, was placed with the mother, and the father was granted reasonable visitation. In February 1992, the father requested that custody be placed with him, alleging that "the mother is a lesbian, which is contrary to the children's moral and religious values and to their psychological and emotional stability."

Whenever a non-custodial parent requests a change of permanent custody, the parent asking for the modification must prove: 1) a permanent, substantial and material change in circumstances; 2) the change in circumstances must adversely affect the best interests of the child; and 3) the temporal, moral and mental welfare of the child would be better off if custody is changed.

The Supreme Court of Oklahoma, in an opinion by Chief Justice Alma Wilson, found that the children were emotionally tied to both their mother and father; that the mother had a loving, nurturing relationship with the children; and that there was no evidence that the mother's behavior had any adverse effect on the children. The Court found that the evidence in this case was not of sufficient quality to prove the essential determinative factor—a significant change of crcumstance that directly and adversely affects the children.

The Fox case does not guarantee that lesbians mothers will always get custody of their children. However, what the case does do for lesbian mothers is ensure the courts' rulings are based upon the relationship of the facts of a given situation to the law and not on personal prejudices.

WebLink: For a review of this entire case, visit www.oscn.net and search the case files for 904 P.2d 66.

This column, while written by a licensed attorney, is NOT an attempt to provide legal advice, and the reader releases OutLook and OutLook Press, from any and all such claims. Each legal case is unique, thus we encourage you to contact your personal attorney for legal advice.