Nolo's Essential Guide to Divorce - Emily Doskow [83]
Sexual Orientation. If one parent comes out as lesbian or gay after separation, what impact does it have on custody and visitation decisions? The answer depends in large part on where you live. If you are in a relatively open-minded state with a significant lesbian or gay population, like California or New York, sexual orientation shouldn't be a factor in custody or visitation decisions. In fact, in some states, the law forbids using sexual orientation alone to deny custody or limit visitation. That doesn't mean you won't come up against a homophobic judge, even in those states. And in some states, courts are allowed to, and do, consider sexual orientation as a major factor in custody and visitation decisions. Its quite common in those states for judges to rule that a parent's same-sex partner can't be around when children are visiting, or that the parent can't expose the kids to a "gay lifestyle." And in the worst-case scenario, parents can be denied all contact with their children on the basis of their sexual orientation.
The same can be true for transgender parents, who may face even more prejudice than same-sex parents, as well as a lack of knowledge in many courts about the transgender experience.
If you're in a same-sex marriage, domestic partnership, or civil union in California, Connecticut, the District of Columbia, Maine, Massachusetts, New Jersey, Oregon, or Washington State, and you and your partner are both legal parents of your kids, your sexual orientation will have no impact on the court's consideration of custody and visitation matters. The same standards that apply to all divorcing couples will apply to you.
If you think you've suffered illegal discrimination in family court because of your sexual orientation, there are agencies that can help you. Contact the National Center for Lesbian Rights at www.nclrights.org or the Lambda Legal Defense and Education Fund at www.lambdalegal.org for information. If you're a transgender parent, contact the Transgender Law Center at www.tlc.org.
Abuse or neglect. Obviously, if there's clear evidence that either parent has abused or neglected the children, a judge will limit that parent's contact with the children. There's more on dealing with abuse in Chapter 14.
The Absent Parent
While it's fairly common for parents to fight for more time with their kids, it sometimes also happens that one parent simply disappears when the couple splits up. Can you track down a spouse who's done a vanishing act and insist on visits with the kids? Not really. The courts have systems for enforcing support, but not visitation. (A judge in Tennessee tried imposing a monetary penalty each time a father failed to exercise his visitation rights, but the court of appeal voided the order.) If your spouse doesn't want to see the kids, there's not much you can do except keep in touch and keep sending the message that visits are possible.
Your Kids and the Court Process: Custody Evaluations
In general, your children won't be too much involved in the court process. You'll go to hearings that involve child custody and support without the kids even knowing that you're doing it-if their schedule is changed, they'll just find that out later. But don't fool yourself that you can he involved in a custody fight and still protect your children from paying the price.
If you ultimately aren't able to work out a custody agreement with your spouse, the court will probably order a custody evaluation. The evaluation itself is a document that an evaluator prepares for the judge to review, giving the evaluator's opinion about the best custody and visitation arrangement for your family.
A custody evaluation is done if:
• the judge orders it, or
• you and your spouse agree to it.
A custody evaluator is a mental health professional, usually a psychologist, with special training and experience in reviewing family situations and making recommendations to judges about what custody arrangements and parenting plan or schedule would be in the best interests of the children involved.