Judge Tells Lesbian Couple to Separate – or Lose Kids

May 25, 2013

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A few weeks ago, Dallas Judge John Roach told Page Price she had to move out of her partner’s house in 30 days – or else that partner of three years, Carolyn Compton, would lose custody of her children. The judge’s reasoning? They aren’t married.

Compton’s ex-husband, Joshua, who had once been charged with stalking her (he pleaded guilty to a lesser charge) had asked for enforcement of a “morality clause” in the couple’s original divorce decree, which bars overnight guests who aren’t related by blood or marriage while the children are there. Of course, as a lesbian couple in Texas, they can’t be married. Never mind the fact that their children “are all happy and well adjusted,” according to Price.

Faced with the choice between Compton’s children and sharing a home, the couple has said they will reluctantly follow the order, though they believe it to be unconstitutional.

They aren’t alone in their predicament. So-called morality or paramour clauses aren’t explicitly limited to LGBT people, though courts once considered the mere fact of homosexuality reason enough to separate parents from children. For years, and as recently as the past few months, multiple courts, usually in red states, have ruled that unmarried sexual relationships, regardless of the genders involved, are grounds for denying custody, regardless of whether there’s evidence of harm to children.

Of course, straight couples in that situation can legally marry – that’s what a Plano, Texas, man described by the Dallas Morning News did after a family court refused to sanction his unmarried relationship under his divorce’s morality clause. And as gay rights activists have long pointed out, since gays and lesbians still can’t get married in most states – including and especially, for the foreseeable future, Texas – this amounts to particular discrimination against them. Meanwhile, the places with the highest percentages of same-sex couples with kids also happen to be the ones with the laws most hostile to them – from Mississippi to Salt Lake City, according to a recent analysis by the Williams Institute – often because those parents had prior heterosexual relationships.

LGBT parents have been fighting discrimination in custody proceedings at least since the 1970s, when the court’s reasoning often assumed that gay people were molesters. (One judge worried that a man’s pubescent sons would be victims of their own father’s “overt or covert homosexual seduction.”) The most famous case was the Bottoms case in 1991, in which a Virginia grandmother who was “sickened” by her daughter’s lesbian relationship was granted custody of a 2-year-old boy, despite the fact that the daughter, Sharon Bottoms, testified that her mother’s live-in (male) companion had molested her hundreds of times as a child. Nevertheless, Sharon Bottoms was ruled to be an unfit mother after the judge “forced Sharon to explain on the witness stand what lesbians do in bed,” according to the Advocate. “Sodomy” was illegal in Virginia at the time.

Nor are such cases relics of the past, though the language used might now be different. In 2012, a Kentucky judge awarded custody to the ex-husband of a lesbian mom, because she was “seeking to live an unconventional life-style that has not been fully embraced by society at large regardless of whether or not same-sex relationships should or should not be considered sexual misconduct.  Like it or not, this decision will impact her children in ways that she may not have fully considered and most will be unfavorable.” Happily, a higher court shot that down: “Legally, we conclude that being a member of a same-sex partnership alone does not meet the criterion for sexual misconduct.”

This article originally appeared on: AlterNet