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By Arlene (Ari) Istar Lev

Breaking Up is Hard to Do Well: The Best Interest of the Children

Posted By on June 30, 2009

Breaking Up is Hard to Do Well: The Best Interest of the Children
By Arlene (Ari) Istar Lev

Perhaps it is just in my corner of the world, but it seems that while the media and the religious right are struggling with the idea that some of us want to marry, in the real lived lives of the queer community some of us are dealing with the vagaries of ending marriages that haven’t worked out.

Somehow you’d think that we’d know how to do this different or better. It of course makes no sense that we would, but I still hold that fantasy that somehow we would do this with more gentleness, less hostility, and certainly fewer attorneys. Unfortunately this is not what I’ve seen.

What I have seen, personally as well as professionally, is that LGBT families break up for all of the same reasons that other families break up, and we do it with as much venom and as little respect, as our heterosexual neighbors. And sadly, we drag our children into the mess, all the while blaming our ex-partners for dragging the children into the mess.

The reality is that our families are fragile. They are fragile for all the same reasons that all families are fragile — mostly because life itself is fragile. We are at the mercy of environmental assaults — economic disasters, life-threatening health crises and homophobic violence — as well as internal struggles — falling in love with someone else, falling out of love with your partner, and simple inability to live together in harmony.

By now all of us have heard the horror stories. Lesbian couples who divorce and the biological mom won’t allow her ex to see the children that she’d raised for 10 years. Gay men who break up and the parent who legally adopted takes the child and denies the other one visitation on the grounds he never “really” was a father. Sperm donors who insist on parental status, despite having signed legal documents stating that they had no intention of being a parent. These situations create a legal quagmire for families that are barely recognized within the law. You try explaining to the judge why your lesbian ex-lover is your child’s parent, but the child’s biological father is not part of your family.

I have also known a number of families who have decided — despite the separation of the parenting couple – to go through a second parent adoption and legalizing the non-biological parents’ relationship to his/her child. This is a profound and loving thing to do in the face of a pending divorce, and clearly speaks to both parents’ ability to place the needs of the child before their own needs. I have to smile at the irony of standing before a judge who was approving a second parent adoption for lesbian partners — an admittedly radical act — who were really just pretending to be partners to appease the judge. They wisely knew that the US court system was not ready to accept a divorcing lesbian couple that still defined themselves as a family through their mutual relationship to their child. I know other couples that have worked out complex custody arrangements to ensure that their children had access to both parents following a painful relationship breakup. These couples that have honored bonds unrecognized by judicial systems need to be honored and recognized by our communities for fostering new definitions of “family.”

We need to protect our families. We are blessed to live in state with good laws for queer families, not everyone has access to same-sex second parent adoption. We owe to our children to make sure we have wills and powers of attorney that explicitly state our wishes for our children. We need to talk with our partners, friends and families about our intentions regarding our children’s welfare should our relationship end. Many of us feel that talking about this puts a death wish on our families, but it actually preserves our families in the event of an unforeseen “death.”

We cannot use our children, or abandon our children, or lay claim to our children based on biology, when we know that love is always thicker than blood. If we have chosen to share parenting with someone — male or female, lover or other — whether the child is birthed or adopted, we need to honor that commitment. Long after we have fallen out of love, or realized that we cannot remain committed to another adult, we need to maintain and respect our child’s relationship to their other parent. Perhaps we need to think long and hard before we make a decision to parent with someone about our ability to maintain these adult relationships far into the future. And bottom line, we should never never use the homophobic legal system that does not respect our families, as a way to hurt our families. That, in my opinion, is unconscionable.