Lesbian and Gay Parenting Questions & Answers Column With Arlene Istar LevDear Ari

A column by Arlene (Ari) Istar Lev

Laws of Virginia

Posted By on September 3, 2010

Dear Ari:

I really enjoyed reading your article and was wondering if you could offer me any help with my current situation.  I live in Virginia and my partner and I are in a custody fight with her soon-to-be ex-husband.  We have lived in the same together for about 8 months now and her ex is only letting her have supervised visits with her 2 boys (ages 6 and 9.) He told her that in order for her to see her boys she would have to cut all contact with me. Of course that isn’t going to happen, so we went to see a lawyer. The lawyer told her that she could fight for her to get set unsupervised visitation with the boys — every other weekend and every other week in the summer — but I would not be able to stay overnight in my home if the boys were there and there could be no evidence that I lived there. My question to you is can the courts in Virginia do that? I love these boys. We were close before my partner ever left her husband. Please help us. We don’t know what to do. We just want to be a family; it’s all I want in this world.


I am sitting down to respond to your email on Martin Luther King’s Jr Day. My partner and I and our two boys, ages 10 and 5 — African-American, and mixed race children — just watched the powerful I Have a Dream speech brought to us courtesy of Internet technology. I try hard to make it real to them what oppression and prejudice are like. I ask them, “What do you think our lives would be like today, if MLK had not spoken that day, if people had not driven and walked to Washington DC?” They hem and haw, and play with little pieces of paper, waiting to be released from the oppression of their mother’s political lessons. It is not real for them, for in some ways they are living the fruition of MLK’s dream. In their lives, little black children and little white children play together, go to school together, and share the same drinking fountains; it is hard for them to imagine it was no always this way in their own parent’s lifetimes.

Additionally, they live in a state where their two white moms are legally allowed to adopt them, and we can be a family together. That does not mean, of course, that homophobia does not exist in New York State, anymore than it means that racism does not exist in this country since the passage of the Civil Rights Act of 1964. But it does mean that changing laws can change the quality and experience of our lives and families. And sadly, Julie, in Virginia gay and straight families are still drinking from different water fountains.

I am not sure how your partner originally received only supervised visitation, but that decision was not her ex-husbands’, but rather was a judicial decision, likely made in family court at the time of the divorce or separation. Changing a decision like this is very difficult, and as your attorney suggested, there will be many accommodations that will have to be made.

Virginia, sadly, has very backward laws; it is one of the most restricted states for lesbian and gay families. The Virginia Legislature has still not repealed or amended its sodomy law to comply with the Supreme Court ruling it has also passed the most wide-ranging Defense of Marriage Act of any state; it also outlaws joint adoptions by gay couples or co-parent adoptions. Most recently Virginia passed a new statute which declares null and void civil unions and “any partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage.” This has far-reaching implications, potentially impacting not just parental security, but other legal documents such as medical power of attorney. Recently, a Virginia legislator recently proposed a bill that would have prohibited doctors from assisting unmarried women with becoming pregnant, to give you an idea of how far this state will go to challenge our families.

So, living in Virginia, you have a few choices. One: play the game as best you can, getting the most knowledgeable and experienced attorneys, and make sure you can see those children as much as possible within the legal restrictions. Two: you can get the best attorneys you can, along with the help from national legal organizations, as well as gay rights groups, and see if you can fight the laws as they stand. I am not an attorney, but I am sure that if you contact groups like the ACLU, Lambda Legal, and NCLR, they can tell you what work is being done to fight these laws, as well as what your best move is at this moment considering the political climate.

Living our lives within oppressive conditions is never easy, and always a compromise. Since the courts in Virginia are not able to think about what is in the best interests of the children, it is essential that you and your partner do just that. In my opinion, one of the best strategies is to stay out of the court system as much as possible, and work with her ex to make inroads in his beliefs.

As a man who has recently lost his wife to her lesbian lover, he is likely grief-stricken. He may be holding the kids as a kind of ransom, or trying to protect them from a “lifestyle” he abhors. It is not always possible to talk sense to bereaved ex’s, or heterosexual men in general, but it is in your best interests to make this transition as smooth as possible. If he is your ally during this time of divorce, then perhaps you work out custody arrangements outside of the judicial system. You said that all you want is be a family: please remember that their father is part of their family also. If you want to join this family, the best way to do this is to respect the family that the children have had in the past, and find ways to work with your partner in having an amicable, joint custody arrangement. That would be in the best interests of the children.