Intimate partner violence in lesbian relationships is not rare,4 but studies regarding the relationship between such violence in the context of lesbian families are sparse.5 While same sex marriage lawsuits are pending in every state,6 it is important to remember that domestic abuse happens in gay and lesbian marriages, too.7 Without marital rights, the rights of same sex parents are less clear.8 In this realm of family, without clear, legally defined rights, lies a method for torture no mother should have to endure: the threat that one’s legal rights will be terminated.
In that vein, lesbian mothers who bore children within an unhealthy lesbian relationship suffer silently, fearing that reporting the abuse will only strengthen her abuser’s resolve to terminate her parental rights.9 Or, where the survivor bore the child in a previous heterosexual relationship and her parental rights are clear through a biological relationship to her child, the lesbian parent may still fear that the heterosexism inherent in our legal system will limit her access to her child in favor of the child’s father.10
Threats involving children need not occur in either type of relationship. If the law clearly defined the rights of co-lesbian mothers through the parental presumption gained through marriage, survivors would know—with certainty—whether the threats of the lesbian parent abuser were empty ones that carry no legal weight, or, more likely, how to appropriately navigate separation from the abuser under the law. Additionally, as same sex couples gain legal rights, the prevailing norms of heterosexism in society will change—hopefully encouraging more lesbian parent survivors with children from previous heterosexual relationships to speak up about the abuse at home. This Article provides one more reason same sex couples need clear marital rights under the law—to prevent domestic abuse.
Accordingly, this Article will first address the common issue of domestic abuse in same sex couples, including same sex lesbian couples with children. Next, this Article will demonstrate how and why the relationship between same sex parents, particularly lesbian parents, is unclear in the absence of a marital relationship. Finally, this Article will argue that same sex marriage rights are crucial to protecting both mothers and children in lesbian relationships from domestic abuse, as a clear presumption of parental rights will both fight prevailing heterosexist legal norms and provide a path to separation that survivors of abuse so desperately need.
It is not novel to note that those committing domestic abuse against their partner often use children, and the threat to remove children from the home of the non-abusive parent, to further torture their partner. Time and time again, victims of abuse, who are also parents, recount that the abusive partner threatened to take the children away forever.15 But, when a lesbian parent is uncertain about her legal rights to her child, this type of threat is maddening and can induce her into staying in an abusive relationship even longer.16
When parental rights are unclear, the abused mother may even be more afraid of losing her parental rights to the father or the State, rather than losing her rights to her lesbian abuser.20 In one study, researchers found that even when a lesbian mother was the legal custodian of her child (through a prior heterosexual relationship) and her current lesbian partner had no legal rights to her child, the lesbian mother reported fear of exposing the domestic abuse in their relationship because she might lose her child.21 This type of insecurity is based in a fear of the use of law to promote heterosexual norms.22 In some jurisdictions where a provision of child custody prohibits a divorced partner from living with a non-spouse, and same sex couples cannot marry, the practical effect of such a rule is to prohibit lesbian and gay parents “from ever being involved in a long term relationship that is the equivalent of marriage.”23 If same sex relationships are recognized with equal force of law through same sex marriage rights, however, family law would be less grounded in heterosexist norms.24
The current legal landscape, in many jurisdictions, allows for a much more stable parenting relationship through same sex marriage. If the lesbian parents are married before one mother becomes pregnant, the other mother is presumed to be the parent under established family law.35 This is the best scenario for the lesbian parents, as they could avoid having to go through a costly adoption process.36 Even if the child is born to the couple prior to obtaining the marriage license, it would be much easier to adopt the child as a second parent after the marriage license is obtained, assuming the sperm donor father has already relinquished his parental rights, because adoption of a child by legally married spouses is traditionally preferred under family law.37
Preferred Citation: Sara R. Benson, Lesbian Mother Survivors of Domestic Abuse: A Plea for Legal Clarity, 2014 U. Ill. L. Rev. Slip Opinions 18, https://illinoislawrev.web.illinois.edu/wp-content/uploads/2014/ 10/Benson.pdf.
* Lecturer in Law, University of Illinois College of Law. I would like to thank my colleagues Rummana Alam and Sean Anderson for their helpful feedback on an earlier draft of this Article. I would also like to thank my fellow University of Illinois Professors Jennifer Hardesty and Ramona Oswald for their important work studying intimate partner violence in lesbian parenting relationships.
1. Leigh Goodmark, From Property to Personhood: What the Legal System Should Do for Children in Family Violence Cases, 102 W. Va. L. Rev. 237, 241 (1999).
2. See, e.g., Scott Hirschfeld, Moving Beyond the Safety Zone: A Staff Development Approach to Anti-Heterosexist Education, 29 Fordham Urb. L.J. 611, 617 (2001) (defining the term “heterosexism” as an “overt or tacit bais among non-heterosexuals based on . . . the omnipresence of heterosexuality”).
3. See infra Part III.
4. Joan C. McClennen, Domestic Violence Between Same-Gender Partners: Recent Findings and Future Research, 20 J. Interpersonal Violence 149, 150 (2005) (noting that “[f]indings from existing research reveal many similarities between same-gender and opposite-gender [intimate partner violence]” including rates of violence); see also Joanna Bunker Rohrbaugh, Domestic Violence in Same-Gender Relationships, 44 Fam. Ct. Rev. 287, 287–88 (2006).
5. Ramona F. Oswald et al., Lesbian Mothers’ Counseling Experiences in the Context of Intimate Partner Violence, 34 Psychol. Women Q. 286, 286 (2010).
6. Rex Wockner, Where Is Same Sex Marriage Legal?, Wockner (Sept. 15, 2014), www.wockner.blogspot.com (“In the remaining 17 states that lack marriage equality, lawsuits have been filed but have not yet seen rulings.”).
8. See infra Part III.
9. Goodmark, supra note 1, at 241, 253 (noting that “[b]atterers use children to hurt their former partners” and that “[f]athers who batter are likely to use legal action to threaten or harass their former partners [and] are twice as likely to seek sole physical custody of their children as non-violent fathers”).
10. See infra Part III.A.
12. See generally Krisana M. Hodges, Comment, Trouble in Paradise: Barriers to Addressing Domestic Violence in Lesbian Relationships, 9 L. & Sexuality 311 (1999); Nancy J. Knauer, Same-Sex Domestic Violence: Claiming a Domestic Sphere While Risking Negative Stereotypes, 8 Temp. Pol. & Civ. Rts. L. Rev. 325 (1999); Maya Shwayder, A Same-Sex Domestic Violence Epidemic Is Silent, The Atlantic, Nov. 5, 2013, http://www.theatlantic.com/health/archive/2013/11/a-same-sex-domestic-violence-epidemic-is-silent/281131/.
13. U.S. Dep’t of Justice, Extent, Nature, and Consequences of Intimate Partner Violence iii (2000), available at http://www.ncjrs.gov/pdffiles1/nij/181867.pdf.
15. Id. at 241.
16. Jennifer L. Hardesty et al., Lesbian/Bisexual Mothers and Intimate Partner Violence: Help Seeking in the Context of Social and Legal Vulnerability, 17 Violence Against Women 28, 42 (2011); Oswald et al., supra note 5, at 287.
17. Kate Kendell, Lesbian and Gay Parents in Child Custody and Visitation Disputes, Hum. Rts., Summer 2003, at 8.
19. Harvey L. Fiser & Paula K. Garrett, It Takes Three, Baby: The Lack of Standard, Legal Definitions of “Best Interest of the Child” and hte Right to Contract for Lesbian Potential Partners, 15 Cardozo J.L. & Gender 1, 15–19 (2008); see also Laura A. Turbe, Comment, Florida’s Inconsistent Use of the Best Interests of the Child Standard, 33 Stetson L. Rev. 369 (2003) (commenting that Florida statutes both permitting same sex couples to provide foster care to children, yet denying them the ability to adopt is an inconsistent application of the best interests of the child standard). A Florida appellate court has ruled that the statute prohibiting all same sex individuals from adopting children is unconstitutional. Fla. Dept. of Children & Families v. In re Adoption of X.X.G. & N.R.G., 45 So. 3d 79 (Fla. Dist. Ct. App. 2010).
22. Id. (describing the influence of heterosexist legal insecurity on lesbian/bisexual mothers’ help-seeking processes).
24. R.A. Lenhardt, Beyond Analogy: Perez v. Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage, 96 Cal. L. Rev. 839, 900 (2008) (recognizing that the state bears an “affirmative role in shaping group and individual identity . . . through its laws and policies”).
26. See, e.g., In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis. 1995).
27. Karla Mansur, De Facto Parent Status & Protecting Your Parental Rights Through Co-Parent Adoption, Mansur’s Law Blog (Apr. 10, 2013), mansurlaw.com/blog/2013/04/de-facto-parent-status-protecting-your-parental-rights-through-co-parent-adoption/ (“If there is a breakdown in the relationship and the non-birth parent wishes to remain in the child’s life against the wishes of hte birth parent the only remedy left is to file a Petition in Equity and seek De Facto Parent status.” (emphasis in original)).
28. See generally Katherine M. Swift, Parenting Agreements, The Potential Power of Contract, and the Limits of Family Law, 34 Fla. St. U. L. Rev. 913 (2007).
29. See K.M. v. E.G., 117 P.3d 673 (Cal. 2005).
30. Nicole Berner, Child Custody Disputes Between Lesbians: Legal Strategies and Their Limitations, 10 Berkeley Women’s L.J. 31, 33 (1995).
32. Miss. Code Ann. § 93-17-3(5) (2014); Utah Code Ann. § 78B-6-117(2) (West 2014).
33. Including Alabama, Kentucky, Nebraska, North Carolina, Ohio, and Wisconsin. See Adoption by LGBT Parents, Nat’l Center for Lesbian Rts., http://ww.nclrights.org/wp-content/uploads/2013/07/2PA_state_list.pdf (last visited Sept. 23, 2014) (citing In re Adoption of K.R.S., 109 So. 3d 176, 177 (Ala. Civ. App. 2012)); S.J.L.S. v. T.L.S., 265 S.W.3d 804, 836 (Ky. Ct. App. 2008); In re Adoption of Luke, 640 N.W.2d 374, 377 (Neb. 2002); Boseman v. Jarrell, 704 S.E.2d 494, 505 (N.C. 2010) (allowing the non-parent to seek custody, but not a second parent adoption); In re Angel Lace M., 516 N.W.2d 678, 686 (Wis. 1994)).
34. Michelangelo Signorile, Jason Hannah and Joe Riggs, Texas Gay Fathers, Denied Legal Parenthood of Twin Sons, HuffPost Gay Voices (June 19, 2014), http://www.huffingtonpost.com/2014/06/18/jason-hanna-and-joe-riggs_n_5506720.html (explaining that under Texas law the court does not “have to grant [the] second-parent adoption because [Texas law does not] recognize our marriage . . . . It’s up to the Judge’s discretion on whether or not to grant it”).
36. See id.
37. Alona R. Croteau, Comment, Voices in the Dark: Second Parent Adoptions When the Law Is Silent, 50 Loy. L. Rev. 675, 681 (2004).
38. 133 S. Ct. 2675, 2691 (2013).
39. 388 U.S. 1 (1967). The irony of the fact that the Windsor Court cited the Loving decision in the exact same line where it noted that marriage is the “province of the States” is not lost on me. Windsor, 133 S. Ct. at 2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975)).
40. The Second Circuit Court of Appeals in Windsor v. United States, applied quasi-suspect classification to “homosexuals” as a group. 699 F.3d 169, 181–82 (2012), aff’d, 133 S. Ct. 2675 (2013).
41. Erik Eckholm, One Court, Three Judges and Four States with Gay Marriage Cases, N.Y. Times, Aug. 6, 2014, http://www.nytimes.com/2014/08/07/us/one-court-three-judges-and-four-states-with-gay-marriage-cases.html?_r=0. The oral arguments in DeBoer v. Snyder, Obergefell v. Himes, Bourke v. Beshear, and Tanco v. Haslam are available on the Sixth Circuit website at http://www.ca6.uscourts.gov/internet/court_audio/audSearch.htm.
42. Baskin v. Bogan, Nos. 14—2386, 14—2387, 14—2388, 14—526, 2014 WL 4359059 (7th Cir. Sept. 4, 2014).
43. Latta v. Otter, Nos. 14—35420, 14—35421, 14—17668, 2014 WL 4977682 (9th Cir. Oct. 7, 2014).
44. See, e.g., Bogan v. Baskin, No. 14—277, 2014 WL 4425162 (U.S. Oct. 6, 2014).
45. Robin Wilson, Symposium: The Human Costs of Staying Out of the Marriage Debate, SCOTUSblog (Oct. 7, 2014), 3:56 PM), http://www.scotusblog.com/2014/10/symposium-the-human-costs-of-staying-out-of-the-marriage-debate/.
46. Id.; Wright v. Arkansas, No. CV-13-2662, 2014 WL 1908815 (Ark. Cir. Ct. May 9, 2014).
47. Gay Couples Marry in Arkansas as Many Clerks Sit Out, NBC News (May 12, 2014) (noting that “more than 200 gay couples obtained Arkansas marriage licenses” the Monday following the decision in Wright v. Arkansas), http://www.nbcnews.com/news/us-news/gay-couples-marry-arkansas-many-clerks-sit-out-n103756.
48. Smith v. Wright, 2014 Ark. 222 (2014).
49. Wilson, supra note 47; Jill Disis, ACLU Seeks Federal Recognition of Indiana Same Sex Marriages, IndyStar (July 11, 2014, 12:48 PM), http://www.indystar.com/story/news/crime/2014/07/11/aclu-asks-federal-recognition-sex-marriages/12527997/).
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