Lesbian (M)Otherhood: Creating an Alternative Model for Settling Child Custody Disputes [1]

Gartner begins by quotijng Nancy Polikoff, a leading gay and lesbian family scholar, who says "if the relationship between two women ends and they cannot agree on matters of custody and visitation, [the] family will find itself in a court system ill-prepared to recognize its existence and to formulate rules to resolve its disputes." [2]

It is Gartner's contention that permitting the nonlegal mother to bring child custody claims does not guarantee that her rights as a parent will be weighed equally with her partner, because the legal doctrines upon which courts rely when deciding child custody cases "derive from heterosexual marriage and reflect patriarchal viewpoints of parenthood." [3] She argues that the combination of this anachronistic judicial system and the surging "gayby boom" has forced lesbian families and the lesbian rights movement to reach a crossroads. To move past this crossroads, Gartner proposes a model of mediation that stems from and is supported by the lesbian community to resolve child custody disputes. [4]

In Part II of the article, Gartner gives a brief review of lesbian legal theory, a jurisprudence that places lesbians at the center of its analysis. Such a theory is necessary, she contends, because focusing on more traditional queer theory holds the danger that "gay male androsexism could marginalize lesbian voices, experiences, and interests in the same way(s) that society generally has subordinated the female to the male." [5] Therefore, Gartner creates her mediation model specifically for lesbian-led families, and she makes it clear that is not intended to apply to other family structures. [6]

In Part III, Gartner explains why the legal doctrines that courts presently use in settling child custody disputes do not adequately serve lesbian-led families. The doctrines stem from models of heterosexual marriage and embody gender biases that do not necessarily apply to lesbian couples. Even though the more modern "primary caretaker" presumption and the "best interest of the child" standard are both facially-neutral, much is left to the discretion of the judge, who can insert anti-lesbian biases into their judgments. [7]

Next, in Part IV, Gartner argues that construction of identity by courts harms lesbian mothers by pitting lesbians against each other by creating categories of "good" and "bad" lesbians, "public" and "private" lesbians, and "feminine" and "butch" lesbians. [8] By promoting an identity of lesbian motherhood in a way that mimics heterosexual motherhood, these courts rob lesbian mothers of their autonomy and of the opportunity to create a "viable alternative to the heterosexual, two-parent household." [9] Gartner notes that the more a lesbian conforms to the traditional attributes of "woman," the more successful she is likely to be in custody cases. [10] Encouraging lesbians to pattern themselves and their families after heterosexual families depletes the potentially revolutionary effects that lesbian motherhood presents. [11]

In Part V, Gartner reviews a variety of social science data which suggest that lesbian families comprise warmth, equality, community and tolerance. Therefore, she argues, these values should inform and infuse the process for settling child custody disputes in lesbian-led families. [12]

Gartner proposes, in Part VI of the article, a new model for settling child custody disputes between lesbian mothers, since the law as it stands today is not appropriate for handling such disputes. She suggests a mediation model, rather than litigation, because it best reflects lesbian families and may circumvent a "potentially heterosexist judiciary." [13]

Gartner reviews the characteristics of mediation and notes some of the benefits, including that participants in mediation tend to respect and follow the outcome of the proceedings more because they feel a sense of ownership over the solution, since they worked toward it together. [14] Additionally, mediation teaches its participants skills on tackling problems and working together, and it is typically more timely and cost-effective. [15]

As part of the model, Gartner proposes that a group of women from the local lesbian community form a committee to manage all aspects of the mediation process, including the training of mediators, the provision of guidelines and physical spaces for the sessions, and assistance in selecting a mediator. [16] Another part of Gartner's proposal is for the local lesbian community to provide fora for lesbian couples to contemplate their children's futures in the case of termination of their relationship, including assistance in drafting contracts agreeing to participate in mediation to settle child custody disputes. [17] As an added protection, she suggests that even if a couple heads straight to court, the judge should refer them to this forum before allowing the litigation to proceed. [18]

The process of the mediation should follow the standards set forth by the lesbian community, but allow for alterations to be made by the particular couple and mediator. [19] Ideally, Gartner proposes, the participants should participate equally in all respects, including each partner being given equal time to express her interests, as well as each respecting the other as an equal. [20] As opposed to the best interest of the child standard, Gartner proposes a "maximizing collective interests" standard, which does not privilege the child over the parents, but treats all family members equally. [21]

Gartner's view is that, "[b]y incorporating lesbian mothers' values, emphasizing involvement by the broader lesbian community, giving participants the flexibility to shape the procedures to meet their unique needs, and working under the "maximizing collective interests" standard," this model represents a viable alternative method for settling child custody disputes between lesbian mothers. [22]

[1] Nadine A. Gartner, Lesbian (M)Otherhood: Creating an Alternative Model for Settling Child Custody Disputes, 16 Law & Sex. 45 (2007).

[2] Id.at 46.

[3] Id. at 48.

[4] See id. at 48-49.

[5] Id. at 52, quoting Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society, 83 Cal. L. Rev. 11, 356 (1995).

[6] See Gartner, supra note 1 at 53.

[7] See id. at 55-56, 58.

[8] Id.at 58.

[9] Id.

[10] See id. at 59, quoting Susan S.M. Edwards, Sex and Gender in the Legal Process 69 (1996).

[11] Gartner, supra note 1 at 61.

[12] Id. at 65.

[13] Id. at 66.

[14] Id. at 68.

[15] See id.

[16] See Gartner, supra note 1 at 69.

[17] Id. at 70.

[18] Id.

[19] Id. at 71.

[20] See id. at 71-72.

[21] See Gartner, supra note 1 at 72.

[22] Id. at 74.