A lead story in the Sunday New York Times dated July 29, 2012 concerned a same-sex married couple in Vermont who had one child born from one of the parties during the marriage by artificial insemination who had subsequently decided to divorce. Vermont does recognize same-sex marriage, and as a result, divorces in that instance are handled in the usual way.
The news story related how the Vermont court granted physical and legal custody to the birth mother and visitation to the other party. In the meantime, the birth mother took the child to Virginia, the state of origin of the birth mother. Virginia does not recognize same-sex marriages. While in Virginia, the birth mother apparently found religion whose view of the LGBT community and same-sex marriage was that those practices were an anathema.
The story continues to describe the efforts of the other spouse to exercise her rights of visitation of the little girl who was born during the marriage. The birth mother refused to comply with the Vermont court order regarding visitation, and accepted the doctrines of her new church, and exposed the child to those doctrines describing her former lifestyle as against the word of God. The birth mother then subscribed to the tenets of this religion that deplored the woman’s same-sex relationship, that, at one time, she relished and sought recognition from legal authorities of her right to marry.
Needless to say, visitation for the other spouse did not occur, and ultimately, the judge in Vermont ordered a change of custody to the other spouse, the non birth mother. When the birth mother refused to comply with the order of the Vermont court, the other spouse sought enforcement of the change of custody order against her former wife.
With the assistance of a pastor whose congregation expresses the same view about same-sex marriages, the birth mother and child went into hiding. Needless to say, criminal complaints issued as well as indictments which included members of the parish who assisted the birth mother to flee with the child.
This description of events from the New York Times is replete with colliding legal and Constitutional issues: states’ rights, individual rights, same-sex marriage, and freedom of religion. The story does not conclude with a happy ending. In fact, there is no ending described at this time.
My bringing this story to your attention is to describe how extraordinarily complex some of our divorce/care and custody cases are getting. In our country, there are states that recognize same-sex marriages, and there are states that do not. In our country, there are religions that open their doors and invite all people to worship freely and without threat of derision or harm. There are also religions that bar the doors to the sanctuaries and altars to those with different lifestyles from what they consider to be the right way.
Even among the states that grant its citizens the right to marry, those citizens cannot obtain the same federal benefits as a citizen of the United States. For example, married same-sex couples cannot file their income taxes jointly to receive the benefits under the federal tax code for married couples.
Likewise, in our country, the Constitution of the United States grants its citizens freedom of religion. As described herein, the birth mother of the child has adopted the tenets of a religion that condemn the practices of the LGBT community.
The birth mother fled Vermont, took the child to live in Virginia, and then was found in Nicaragua. The birth mother denied the rights of her marital partner by leaving the jurisdiction of Vermont first, and then did so again, by fleeing to a country which is not a signatory of the Hague Convention. The Hague Convention is a treaty whose signatories are countries that have agreed to accept, adhere and enforce the court orders of the issuing countries which had jurisdiction regarding the care and custody of the children of the marriage.
In this intricate web or morass of detail, who will be the ultimate winner? This is not a movie starring Dustin Hoffman and Meryl Streep where despite the court’s conclusion, the child comes running back to his daddy when the mother cannot handle it. This is a case dealing with all the nastiness of bad intentions and good intentions. This is a case where people invoke the word of God to justify their crude actions, and others respond in reaction citing state constitutions but not the federal Constitution regarding the rights of gays and lesbians.
Where and how will this all conclude? The realties are such that the party seeking enforcement of her now custody may give up as a result of exhaustion of emotions and financial resources to mount an offensive. I suppose the movie ending would be litigation in the highest court in the land, the United States Supreme Court, which would render an electrifyingly lucid decision declaring the rights of U.S. citizens to marry in any state and have all the rights and privileges of this country.
I remain the eternal optimist. My hope is that the birth mother might experience an epiphany, and on their own, the two women will do the right thing for the child, to do what is in her best interest. This why I continue to practice law after almost forty years; I believe in the happy ending.
PhilipJByers
Philip J. Byers, Attorney 