Lesbian Mothers and Custody Fights

Before same-sex marriage, before gay and lesbian couples could adopt children, and before benefits were extended to same-sex partners, mothers were losing their children on the basis of their sexuality. Women who divorced their husbands and then went on to have relationships with other women risked having their children removed from their custody. Women who were lesbians were often found to be ‘unfit’ mothers.  Judges frequently believed that children who had gay parents would be influenced by those parents to grow up to be gay themselves, which they saw as a terrible outcome. Family court judges also often considered that the stress of bullying and ostracization would be more detrimental than the trauma of losing a parent.

Lesbians banded together for support. Materials in the 1979 conference package from the Lesbian Organization of Toronto reflected on these challenges:

“How do we survive with the very real threat of ‘unfit’ motherhood that hangs over us? To become strong, we need to be visible, but the dangers to ourselves and our children are too great. How do we end our isolation and support each other in the possible joys of creating alternatives for ourselves and the children?”

Over time, lesbians created spaces where they could discuss issues, get financial or legal support, and trade strategies for dealing with ex-partners. The problem became so acute that the Lesbian Mothers Defence Fund (LMDF) was started in Toronto, and  other similar organizations emerged across North America. The LMDF newsletter, Grapevine, shared stories from across Canada and the US of mothers fighting for custody, and of wins and losses in courts.  Articles such as “Custody Battles – Not Child’s Play” were published in magazines like  Broadside, while the Wages for Housework Campaign Bulletin reported on efforts to get active support for lesbian mothers at the 1977 Annual National Gay Rights Conference in Saskatoon, and the August 1978 issue of Upstream included a “Resource for lesbian mothers’ custody battles”.

In 1978, Branching Out published an article by lawyer Halyna Freeland, the lawyer who acted for the mother in the milestone case K. v. K. which was the first reported case in Canada in which a lesbian mother won custody. Despite the importance of this victory, Freeland still cautioned: “In spite of the thorough and convincing evidence which I was able to call on Mrs. K.’s behalf, I believe she would have lost custody of her child had the father not been found completely incapable of caring for the child.”

Illustration by Barbara Hartman Branching Out, Vol. 5, No. 1, 1978

Illustration by Barbara Hartman
Branching Out, V. 5, N. 1, 1978

The path forward was slow and hard fought, and it was only after many court cases, demonstrations, and families torn apart that things began to change. The inclusion of sexual orientation as a protected group was “read into” the Charter of Rights and Freedoms, and, taken together with a number of landmark cases, there was increasing recognition of lesbians as rightful parents of their children.

In her introduction to Who’s Your Daddy?  (an anthology on queer parenting), editor Rachel Epstein reflects on the significant changes that have occurred in the recognition of gay parents, but also on how barriers to the recognition of diverse families persist. She asks:

“Which families get legally recognized and which not? What happens to the families that don’t fit the nuclear model? What about the issues of class and access to financial resources that are raised when costly legal procedures are required in order to secure parenting status? Is it still a choice to not pursue state-sanctioned legal protections?”

While times have changed, and custody battles hinging on sexual orientation may be a thing of the past, there is much to be learned from the strategies of lesbian moms to address the obstacles that remain for many queer families.

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