Judge Allows Lesbian Parents Custody of Child

An Illinois judge has granted permission for a mother to take her children out of state, where they will live with her and her new partner--who is also female.

The ruling was the subject of a story posted at anti-gay blog Americans for Truth About Homosexuality (AFTAH). The story originated with the anti-gay Illinois Family Institute, and was posted on the group's Web site on Jan. 6.

In his introductory remarks, blogger Peter LaBerbera, who runs AFTAH, denounced the ruling as "a real-world by-product of the cultural elites' myth advancing the supposed equality of 'gay parenting.'"

Added LaBarbera, "If this rancid decision is left unturned, these poor children will be forced to live with immoral role models and all the confusion that entails--far, far away from their devoted father. Continued the anti-gay blogger, "God help us, and God help these poor children: that they won't become guinea pigs in the Left's latest social experiment: intentionally fatherless, lesbian parenting."

The article renounced as "feckless" and "activist" the judge in the case, John R. Kennedy, who authorized the children's relocation with their mother, Karen Kelsky, who is moving from Champaign, Illinois, to Eugene, Oregon (which, the article notes, is "a stone's throw from the lesbian mecca of Portland, Oregon"). Kelsky, a university professor, will live with her female significant other.

The Illinois Family Institute excoriated Kelsky and deplored the fact that the children would no longer live near their father, Taro Iwata. "Kelsy [sic] has decided that her self-serving and disordered desire to live with a lesbian lover across the country trumps her husband's natural and legitimate desire to be deeply and regularly involved in his children's lives and trumps her children's needs, desires, and rights to be deeply and regularly involved with their father," the article said.

"And apparently Champaign County Judge Kennedy agrees, for he has decided that Kelsky may uproot her children, take them far away from their devoted father, and settle them permanently in a household defined by deviance," the article went on.

The article paraphrased Iwata's lawyer, Jason Craddock, as providing a list of main points in the ruling, including "that the children's best interests will be served by allowing the move because 1) the mother will be a 'stay at home mom' (ah, yes, the quintessential picture of traditional domesticity: a fatherless home led by two lesbians) while her lover works (even though their standard of living here in Illinois is higher than their standard of living will be in Oregon); 2) the judge views the lesbian relationship as equivalent to a heterosexual marriage (even though neither the state of Illinois nor the state of Oregon views them as equivalent); 3) the judge found that the mother being with her lover will be a direct benefit that will enhance the children's quality of life; and 4) the judge found that the presence in Oregon of the extended family of the lesbian lover was a factor warranting removal of the children in that neither the mother's nor the father's extended family lives close to Illinois or Oregon."

Same-Sex Families Slammed

The article condemned the idea that relatives of a same-sex partner could provide a loving and stable family structure for children. "That is a radical, subversive, insidious, pernicious, and stupefying idea," the article asserted, going on to note that the decision also diminished the visitation time for the father.

The article quoted Craddock as saying, "Even from a 'coldly' legal standpoint, this decision is subversive. It flies squarely in the face of decades of removal jurisprudence in Illinois, as Illinois courts historically and consistently give great weight to the relationship enjoyed between children and their non-custodial parents, and typically allow removal only where the visitation time would either remain the same or increase after the move. Also, Illinois courts have never allowed removal where a custodial parent desired to move to a place in order to move in with a paramour or when such a move would lower the family's standard of living. Courts have without exception allowed removal only where the new spouse or fianc�e of the custodial parent lived away from Illinois and where the standard of living would be increased."

Craddock went on to contrast the ruling with the recent failure of the state's legislature to provide legal protections for gay and lesbian families, saying, "This decision clearly constitutes an activist decision, with Judge Kennedy going boldly where the Illinois legislature expressly declined to go before: the Illinois 'civil unions' bill presented in the House of Representatives was soundly rejected this past year. Our elected legislature apparently recognizes a legal distinction between heterosexual married couples and same-sex couples. Judge Kennedy has taken it upon himself to confer legal status where it decidedly does not exist." The article did not include comments from Kelsky or her legal representation.

The article's author then proceeded to slam the cause of GLBT civil rights, as well as gay and lesbian families, comparing committed family relationships between individuals of the same gender to sex between close relatives and arrangements in which multiple sexual partners form unions that include more than two people. Wrote the author of the article, "Judge Kennedy's findings reveal his likely underlying assumptions: he likely holds the unproven, highly arguable, a-historical theory that homosexuality is ontologically equivalent to race and morally equivalent to heterosexuality, whereas in reality homosexuality is both ontologically and morally equivalent to polyamory or consensual incest."

The article's author returned to the theme of gays and lesbians being "disordered," writing, "Perhaps most troubling of all is that he has arrogantly decided that subordinating the relationship of father and children to the profoundly disordered relationship of mother and homosexual partner serves the best interests of the children.

"It's a wonder that Kennedy can sleep at night," the article's author fumed, going on to add, "Mr. Iwata intends to appeal this execrable decision. Please pray for his victory."

Rhetoric Familiar from 'Ex-Lesbian' Custody Case

The rhetoric and anti-gay animus that characterize the Illinois Family Institute article are similar to the accusations and assumptions of pathology expressed by anti-gay pundits in the case of a former lesbian couple embroiled in a custody dispute.

Although the supreme courts of two states upheld the parental relationship between Janet Jenkins and the biological daughter of Jenkins' former life partner, Lisa Miller (who now says she is no longer a lesbian), Jenkins' ex refused to comply with court-ordered visitation privileges for Jenkins. As in similar cases between heterosexual parents, that refusal led to a family court judge granting custody of Isabelle to Jenkins.

Vermont Family Court Judge William Cohen ruled that the change of custody was necessary because the dispute had the capacity to harm the child more than a change of custody would. Wrote Judge Cohen, "Ms. Miller's interference with the relationship between (the child) and Ms. Jenkins have become so pervasive that it now outweighs the potential harm that could occur to the child by a chance of custody."

But to anti-gay Christian pundits, the case represents a precedent in which the state takes a child from her biological mother in favor of a non-biological former same-sex partner.

Miller's lawyer, Mat Staver, is also the founder of the right wing--and anti-gay--Liberty Counsel, which has ties to Jerry Falwell's religious organization. Staver was one of two sources quoted in a Nov. 25 article posted at CitizenLink.com, a Focus on the Family-affiliated Web publication. The other source quoted in the article was a professor at the right-wing Christian Liberty University School of Law.

Said Staver, "This judge in Vermont ultimately ruled that he is going to switch custody from Lisa Miller, and take her own biological daughter Isabella and move her from Virginia and put her into an activist lesbian household up in Vermont with a person she really doesn't know, who's not her biological mother, and frankly who's not acted as a parent."

Staver claimed that Isabella responded negatively to Jenkins' so-called "lesbian lifestyle," saying, "Every time that the visitation actually occurred, Isabella had violent reactions, because Janet exposed her to the lesbian lifestyle." Staver claimed that Jenkins "tried to convince her that she has two moms and even tried to scare her by saying that she was going to be taken from Lisa and transferred to Vermont."

The article painted Miller's refusal; to comply with the court-ordered custodial arrangement due to the "violent reactions" that Isabella allegedly exhibited to spending with Jenkins. However Jenkins painted a much different picture, saying, "[M]y daughter completely knows me. We were together ten months ago. I mean, she adores me. She calls me Mama."

The case has raged for six years between the former life partners, who had entered into a civil union together before Miller conceived Isabella via artificial insemination. When their relationship ended, Miller relocated from Vermont to Virginia and became a Baptist.

The custody dispute went all the way to the state supreme court of both states. Vermont's Supreme Court recognized Jenkins' parental relationship with Isabella, and the Vermont state Supreme Court found--despite a Virginia law that excludes same-sex families from any legal recognition--that while Miller would receive custody of Isabella, Jenkins would retain visitation rights. It is that arrangement that Judge Cohen's ruling reversed.

Ruling Attacked

Cohen's ruling was denounced by Liberty University School of Law professor Rena Lindevaldsen, who told CitizenLink.com, "To have the first reported decision in the country stripping a biological mother of her child, solely because she has refused to give visitation to a legal stranger, is shocking." Added Lindevaldsen, "There's a lot of talk nowadays about drawing that line in the sand and understanding that government can't order certain things. When you're ordering a child to be stripped from her biological mother, you've got to wonder, has the court overstepped its bounds?"

Staver cited the case as illustrative of the perils of granting same-sex families full legal recognition, telling Newsweek in a Dec. 6, 2008 article that, "Lisa Miller's case illustrates two things in regards to same-sex marriages. First, one state cannot adopt same-sex unions without affecting the sister states. It's simply impossible. Secondly, these cases are about real people, and children are particularly caught in the tangled legal web of same-sex marriage, and Isabella is a classic example."

In that same article, however, Jenkins offered a glimpse into what the case has meant for her. "I did not divorce my child, I divorced my partner," she said. "Yet I've missed out on my child's kindergarten graduation. I'll never get that back. I don't even get to talk to my daughter on the phone. It's heinous what has transpired."

Whether children of same-sex couples are more at risk of such legal entanglement than are children of feuding heterosexual former spouses may be a point of debate. When it does happen that dissolving same-sex unions involve children, however, what holds sway is the very same patchwork of legal rights and status that can change the legal standing of a family's members from one state to the next simply by crossing a border: while Vermont, where the women lived while together and where Jenkins still resides, now offers marriage equality, Virginia, where Miller relocated, specifically denies any legal recognition of same-sex families at all. Attorney Joseph Price, who represents Jenkins, told Newsweek, "You cannot just shop your case around in different states until you get a ruling in your favor. And that's essentially what Lisa has tried to do."

In that article, Miller, too, opened up, saying that she had a conversion experience while attending a Baptist church and decided to walk away from her lesbian identity. "I do not feel safe leaving my daughter with her," Miller told Newsweek, referring to Jenkins, "and I believe I have a God-given and constitutional right to raise my child as I see fit." Continued Miller, "There is a homosexual agenda at work here, and Isabella is a pawn in their game. It has nothing to do with the law. Isabella was saved at age 4, loves God, and knows what's right and what's wrong. We don't hate Janet, we pray for her soul and salvation."

Miller did not comply with the judge's decree, however, and news reports said that her whereabouts were unknown. A Jan. 5 Associated Press story said that Jenkins had filed a contempt of court motion against Miller for failing to deliver their seven-year-old daughter as she had been ordered to do.

Meantime, Jenkins expressed her worry and her fear, writing in a statement, "I am so worried about Isabella. I do not know where she is or whether she is okay."

The AP story noted that Staver did not respond to requests for comment.