American family courts—a series of state courts that specifically deal in family law, from child custody cases to divorce proceedings—are a distinctly unsung part of our judicial system. They are rarely discussed in the media and largely absent from the Hollywood spotlight; as a result, few people understand how they work.
But if you are a parent involved in a case subject to their rule, you could easily find yourself at the mercy of a judge with broad power to decide how much, if at all, you get to see your children. Family courts lack juries, so such decisions are delivered from the pen of a sole person. And the system does not treat everyone equally. According to numerous legal practitioners and scholars I spoke to, a widespread bias exists within the system against parents whose views or lifestyles fall outside the American norm, especially sexually.
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Family court judges rule most often on two types of cases—arbitration after children have been removed from the care of unfit parents, and custody disputes following divorce or separation—and decide both based on the best interests of children involved. But legal experts who spoke with VICE testified to the near limitless discretion judges have to impose their own moral views.
“I can predict the likelihood of my success by zip code,” said Diana Adams, a family lawyer from New York who has spent the last decade working with clients who are LGBTQ, polyamorous, kinky, or otherwise outside the mainstream. Because family court judges are elected by direct vote in many states, their tolerance of alternative lifestyles tends to correlate with that of the surrounding area. She represents clients in both New York City and more conservative areas of upstate New York, and says that the weight of a parent’s sex life upon a judge’s decision varies wildly from judge to judge, depending on their political views. She also provides advice to clients out of state, and has noticed a pattern: For clients like hers, Southern and rural areas are unforgiving places for cases to come before family court judges.
When the Supreme Court declared in Lawrence v. Texas that state laws against homosexuality were unconstitutional, it also ruled that states cannot establish laws based purely on the moral disapproval of lawmakers. But as legal scholars have noted, those who come before family courts lack the constitutional protections that apply to criminal cases, in which the discretion of an individual judge is limited and juries are involved. And because family court cases rarely go to appeal, very few rulings from higher courts exist to establish precedent on the boundaries of a family court’s power. Those appellate rulings we do have generally confirm, rather than restrict, that power.
Though most states now prohibit judges from using sexual orientation as a factor in family court rulings, judges are still free to cite a parent’s polyamorous or kinky proclivities—or even a willingness to have non-marital sex—as an explicit reason for handing down rulings. In any case, family court judges are often not explicit about the exact factors that lead to their rulings. Adams recounted one case in which a family court removed a child from the custody of a transgender client, ostensibly because her client’s cat was sick the day a child services worker visited and vomit was seen on the floor. But Adams said that “a white cisgender professional mother like me would never lose custody of her child because a sick cat made a mess.”
Even premarital sex can be enough to sway the opinion of a family court judge. For instance, in one 2012 case, an Alabama Court of Civil Appeals awarded a father custody of his five-year-old child. Despite the boy having lived with his mother for three and a half years, having by all accounts been happy and well cared for, the mother lived with her fiancé before they were actually married. During the trial, the mother was accused by the opposing counsel of “sending the wrong signal to your children with your fiancé living in your household and being in the bed with you at night.” When she appealed the case, the appeals court confirmed that family courts are free to “consider a parent’s sexual conduct as it relates to that parent’s character, without a showing that the conduct has been detrimental to the child.”
As several legal scholars related in frustration, no organizing body tracks or maintains statistics on what happens in family courts or to whom. Eugene Volokh, a UCLA School of Law professor, published an article in 2006 that tried to document cases where parents have been penalized in family court proceedings for holding non-normative views on sex, religion, and politics. It clocked in at more than a hundred densely footnoted pages, and he says he was only able to capture a fraction of the cases he could find. And Susan Wright, the founder of the National Coalition on Sexual Freedom, which provides support to people with non-traditional sexual lifestyles embroiled in family court proceedings, suspects that the hundreds of cases brought to her organization’s attention over the past decade only represent a small percentage of the total nationwide.
Though experts said the attitudes of family court judges are slowly improving from decades past, non-traditional parents increasingly face other types of challenges; Andrew Gilden, a professor at the Willamette University College of Law, worries that people are creating detailed trails of evidence to be used against them in family courts on their phones and personal computers. Adams’s experience confirms that fear: She said she’s seen many internet dating and Fetlife (a kink-focused social network) profiles introduced in court.
In many states, family court judges are elected by direct vote; that means people can ensure those on the bench are tolerant of alternative lifestyles when they go to the polls. (Though doing judicial research before local elections is admittedly time-consuming.) But for the increasing number of loving, capable parents who happen to practice non-normative sex, one should hope recent voting trends reverse in time.
Neil McArthur is the director of the Centre for Professional and Applied Ethics at University of Manitoba, where his work focuses on sexual ethics and the philosophy of sexuality. Follow him on Twitter.
