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Gay Parenting 101: Death and Divorce - Mo's Journal
August 7th, 2006
06:21 pm

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Gay Parenting 101: Death and Divorce
For some lesbian and gay families, the day-to-day effects of only one parent being legally recognized as such are minimal. We can have an assortment of legal documents drawn up that cover most ordinary situations. Some of us can afford private insurance; others have enlightened employers who provide insurance for the whole family. We may live somewhere where there are good options for schools and camps and community centers that recognize our families for what they are. Still, even with all that in place, there are two times when legal status can count for a lot: death and divorce.


Death You can’t will your kids; they aren’t property. If a child has two legal, custodial parents and one dies, there is no legal process to determine custody – the other parent just continues custody. The death of one parent is not in any way a threat to the parenthood of the other.

Not so for lesbian and gay couples where only one is the legal parent. If that parent dies, a court must decide on custody in the "best interests of the child." The parent’s wishes are definitely considered in the decision, so it’s very important that the parent have in place a guardianship statement saying that s/he wants her/his partner to continue parenting the child. But such a statement is not determinative; it’s left to the discretion of the court.

If a biological relative challenges the dead mother’s statement that her partner should retain custody, there will be a court battle. The good news is that when there have been court battles, the judges have generally been very compassionate and reasonable and have not taken children away from the only home they knew and the sole surviving parent to give them to grandparents who had been hostile to their family. This has been true even in very homophobic states (like Florida, where one of the earlier cases occurred). The bad news is that a family who is dealing with the always devastating and often sudden and unexpected death of one of the two parents really should not have to rally itself to fight a legal battle to stay together. I was advised by my attorney that since my parents had disowned me and most of my family of origin had gone along with them in the ostracism, it was important that I not leave anything to my kids in my will, lest the money be motivation for taking the kids. By leaving everything to my spouse of the time instead, it would be harder for some homophobic relative to care for the kids if s/he did win, so s/he might be less likely to try. These are not the kinds of things that people should have to consider in estate planning.

There are serious problems, too, when it’s the non-legal parent who dies. I’ll illustrate with a real life example. I have two friends who were widowed in 1993, both with small children. L. was married to a man and they had a four-year-old son. Her husband died of a heart attack and she had to deal with sudden widowhood and single parenthood. She’s a lawyer and had been working part time while her son was little, but had to go back to full time work. It was hard – dealing with both the emotional and financial stresses at once, but she was helped by Social Security. Her son received monthly payments because of his father's death, throughout his childhood.

J. was also widowed. She and her partner P. had twin 3.5-year-olds when P. died in a freak accident. Like L., J. had given birth and was working part-time for a few years (she’s a social worker). Unlike L., her children were not eligible for Social Security when their parent died, because both of their parents were women. P. paid into the Social Security system throughout her working life, but it wasn't there for her children when they needed it, solely because she was a lesbian. In addition, there was some question whether the accident was due to negligence, but J. and her children could neither sue nor receive an out-of-court settlement; they had no standing.

We do all we can to ensure that our children will be cared for, even if one of their parents dies. We have wills; we have insurance; we have guardianship statements. Death is the ultimate leveler, unless you’re gay. The state not only won’t help you if you’re widowed; it may oppress what’s left of your family.

Divorce Our marriages exist outside of the law and so do our divorces. It’s up to us as couples breaking up to arrange for ourselves how we do it, particularly for those of us who are legally unacknowledged parents. And not all of us do it well. Many couples who hold themselves out to the community as equal parents when they are together suddenly become unequal in the face of divorce. And rarely do the courts hold them to the promises they made when they were together.

I’ve talked to some of the bio parents who suddenly became sole parents after divorce, or who bit by bit cut off contact between the child and the ex until they were. They don’t perceive themselves as breaking a promise, generally, and if they do they feel they’re doing it for their children’s own good. The ex, they say, was never really a mother. She was unreliable, she was inadequate, she mistreated the bio-parent and would likely do the same to the child. Often there’s a new partner in the picture and the bio- (or legally adoptive parent) thinks the new person is much better at parenting the child. I think in some cases it’s probably true. On the other hand, I just don’t think that someone who is in the middle of a divorce is the best judge of the person he or she is divorcing! How could it be that the “inadequate” parent is always the one with no power? And beyond that, even if the other parent really is inadequate, an inadequate parent is still a parent and still offers something of value to a child. Children have a right to know who their parents are and that kinship won’t change because they break up. At least they ought to have that right. I think this is a case of power corrupting the parents who cut out their exes.

It’s easy to blame the parents who cut the other out of their children’s lives after divorce, and I do blame them for letting power corrupt them. But I have some sympathy for them, too. They need structures and supports to help them do the right thing, and there aren’t a whole lot of such structures and supports around. It’s so easy to renege on the commitments one made, particularly if the child is very young. It’s so hard to do what you know is right. There are few things more frustrating than dealing constantly with someone you wish you could get out of your life altogether, and I think many people feel that way about their former spouses when they divorce. What parents in our community need is support in dealing with that frustration; what they often get from the outside world is support in ending the frustration by denying the parenthood of their ex-partner. I dare say a lot of straight women would do it, too, if they could, particularly if they’ve remarried. I’m glad it’s not left to them to decide whether the child’s father’s parental rights are terminated, without any court procedure whatsoever. It shouldn’t be left to our biological mothers and legal adoptive parents, either.

Not everyone lets the power corrupt them. Many of us do manage to coparent with our exes, without legal structures to support us, and often in spite of a lot of difficulty from time to time in getting along. Hey, if we got along well, we probably wouldn’t have gotten divorced in the first place!

In What’s Past Is Prologue Jean-Paul and Adam struggle with these issues when they break up, in much the way that real life separating gay and lesbian parents do. Adam is the sole legal parent but he’s committed to coparenting, even with a new lover who seems to want to squeeze Jean-Paul out. Jean-Paul is insecure about his parenthood without legal structures to back him up and asks that Adam not tell his new lover that he (J-P) has no legal rights. Adam does the right thing for a variety of reasons, but would he have if there had been more rancor between them? Not everyone manages to.

What tools are available to prevent the legal issues that plague children of same sex parents if one parent dies or the couple breaks up? There are a few, none of them perfect.

Next Up: Tools to Protect Children of Same Sex Parents: Second Parent Adoption, Joint Adoption, Domestic Partnership, Civil Union and Marriage. How They Work, Where They Are Available and Where They’re Not and Why They Are Inadequate

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