In Alabama, Gay Parents Are Legally ‘Unfit’

My lesbian client lost custody of her kids

The recent ruling in Alabama finding that embryos are legally “children” has brought to the forefront the fact that Christian Nationalism has overtaken the state. This is not new. I was a family law attorney there. In 1999, I was hired by a woman to fight her husband, who wanted custody of their children in the divorce because she was in a relationship with another woman. The facts will blow your mind.

The 1998 Alabama Supreme Court Decision

First, note that a year prior, in 1998, the Alabama Supreme Court issued a decision that found that in a custody dispute, there is a rebuttable presumption that a parent who is homosexual is unfit to be granted custody of the children. The case states:

When a noncustodial parent is involved in a continuing homosexual relationship, restrictions on that parent’s visitation rights have been widely held to be proper. Caroll J. Miller, Annotation, Visitation Rights of Homosexual or Lesbian Parent, 36 A.L.R.4th 997 (1985). Restrictions such as those at issue here are common tools used to shield a child from the harmful effects of a parent’s illicit sexual relationships heterosexual or homosexual.[2] Diane M. Allen, Annotation, Propriety of Provision of Custody or Visitation Order Designed to Insulate Child from Parent’s Extramarital Sexual Relationships, 40 A.L.R.4th 812 (1985). Moreover, the conduct inherent in lesbianism is illegal in Alabama. Ala.Code 1975, § 13A-6–65(a)(3). R.W., therefore, is continually engaging in conduct that violates the criminal law of this state. Exposing her children to such a life-style, one that is illegal under the laws of this state and immoral in the eyes of most of its citizens, could greatly traumatize them. Given both the demonstrable harm to these children that has already occurred and the potential for harm through continued exposure to their mother’s lifestyle, we cannot hold that the trial court abused its discretion in imposing these limitations on R.W.’s visitation.

As soon as it was published, allegations of homosexual conduct started happening in contested custody cases. (I’ll come back to this 1998 case.)

In 1999, I represented a lesbian faced with losing her kids

In our first interview, my client was hysterical that her husband was fighting for custody in the divorce.

They had been married for over ten years, and during that time, he had continuously begged her for a “threesome.” She finally agreed to shut him up. He found a woman who was willing to join them. To his redneck Bubba horror, the wife and the new woman fell in love. The wife filed for divorce so she and the new woman could be together.

The husband had never had much to do with their daughters, but when the young teen daughters had stayed at his place while our case was pending, he let them have their boyfriends stay the night in their beds and allowed them to use marijuana. The daughters testified they wanted to live with their dad after he allowed this. There were numerous allegations of the father being violent and drunk around the kids.

While I was aware of the recent case finding that gay parents were presumed to be unfit, it was a “rebuttable presumption” (meaning we could argue against it, which we did), and given the facts of this case, I was certain the trial judge would not place the girls with their father. I was wrong, and we lost. The judge found that the mother being gay was a much greater danger to the kids than the behavior of the father. Our judge’s decision said he had to follow the Supreme Court decision.

After court, my client and her girlfriend, the father, and the two daughters exited, and, at first, the girls followed their father. He turned around and told the girls, “I don’t want you. Go with your mother.” My client and I stood stunned as the crying daughters walked towards us. Then he yelled at my client, “Don’t be late on the child support.”

We filed a motion to reconsider, which included an affidavit about what happened after court. It was denied. I was working pro bono, and appealing wouldn’t likely change the result. The state’s religious fervor created the bizarre result of the mom paying child support even though she had the kids all the time. The daughters, who thought they would have far more freedom at the father’s house, realized they had been played.

I was horrified. I left the state four years later, grieving that I ever lived there. For a time, I thought I could help change things from within, but it was like trying to empty the ocean with a bucket.

But the 1998 Case Was Worse

As horrifying as my case was, the Supreme Court case I cited above is worse. In that case, the father:

1. has threatened to kill [the mother], the children, and others; 2. closed his infant son in a clothes dryer; 3. ran into a tree stump, totalling his car, while driving intoxicated with his daughter in the vehicle. She was 23 months old at the time and was not secured in a child safety belt; 4. had received numerous D.U.I. citations before his marriage, one while [the mother] was pregnant with their first child, and one during the pendency of this action; 5. returned the children from Chis house with flea bites, and both [children] contracted scabies after visiting him 6. has a history of serious alcohol abuse and violence; 7. has been charged with domestic abuse on three occasions, and [the mother] testified that there were many unreported incidents of abuse during their 10-year marriage; 8. had been cited for “third-degree assault and was described by police as ‘highly intoxicated and using abusive language’; 9. was arrested for third-degree assault and . . . the police noted a bruise on [the mother’s] left eye and [the police] was forced to apprehend [the father] after he fled.

But the court gave him custody because the mama was gay. The courts in Alabama are still denying gay parents custody when there is a dispute.

The courts in Alabama are still denying gay parents custody when there is a dispute.

In the recent decision on embryos being legal children, Alabama Supreme Court Chief Justice Tom Parker referred to “God” over forty times. He stated in his concurring judgment, “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God.” He also stated, “All human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

This is not limited to Alabama. The imposition of radical Christian theology is at stake in the coming election. There are judges and politicians nationwide who are seeking to take away the rights that LGBTQ folks have fought for over the last few decades. The Christian Nationalists will not stop at banning women’s reproductive autonomy nationwide. Please vote to stop this cruel insanity.

We’re here. We’re queer and leave us the fuck alone.

I’m an author, artist, and advocate who is also a trans woman. I used to be an attorney and a pastor…it’s a long story. Please follow me for details and consider buying me a beverage. Love, Sophia