The parent trap – nonbiological lesbian mother fights for custody or visitation rights to child
Katie Cotter
A high-profile case involving television actor Amanda Bearse exposes the moral dilemmas that can arise for broken gay families
“It’s like this dirty little secret in the gay community,” charges Tena Clark, a record producer engaged in a lawsuit against her former lover, Dell Pearce. Clark and Pearce were scheduled to go to court January 27 to determine Clark’s rights with regard to the 10-year-old girl they had been raising together. The “dirty little secret” Clark refers to is the growing incidence of such lesbian-versus-lesbian battles for custody or visitation rights in which “nonbiological” mothers such as Clark are generally left out in the cold by a legal system that does not recognize their relationship to the child.
While the issue has indeed, until recently, been little acknowledged by gay organizations and by the lesbian and gay press, Clark’s case is changing all that. It has captured broad interest for one reason: Pearce’s current partner happens to be Amanda Bearse, costar of the Fox sitcom Married…With Children and a spokeswoman for the Human Rights Campaign, a gay lobbying group. As a result of Bearse’s “stepmother” status in the case, supermarket tabloids have scurried for the story, and two major gay organizations have been pushed to take sides.
By going public with her personal struggle, Clark hopes to draw attention to a larger issue: Until gay families are recognized by the courts, how can lesbians and gay men resolve the legal conflicts that inevitably arise? And if in the meantime the law is biased against the claims of nonbiological lesbian and gay parents, what is to prevent biological parents from using that bias to their advantage?
Such questions have very real and practical, even heart-wrenching, implications for increasing numbers of lesbians and gay men. “The single greatest impediment to nonbiological parents’ maintaining a relationship with their children is the fact that the legal system does not respect our relationships or consider our families to be `real’ families,” says Kathryn Kendell, executive director of the National Center for Lesbian Rights. While the NCLR estimates that there are 25 to 30 lesbian-versus-lesbian cases working their way through the country’s courts, Kendell points out that many more gay parents stop short of even trying to pursue visitation or custody rights. Cases like these have been little noticed, she says, in part because gays have avoided the topic, seeing it as “bad publicity.” What many believe, Kendell says, is that “if we talk about the issue, then heterosexuals will see that we really don’t take our families seriously.”
At the core of the Clark-Pearce custody debate, however, is how lesbians themselves view their own families–and whether those views can stand the tests of time and trouble. While many lesbian couples neglect to spell out their understanding of mutual rights and responsibilities in advance, in this case, according to Clark, the couple had signed a coparenting agreement that “stated dearly everything that would happen in case of separation and that there was to be joint custody, equal rights…and that we had to live in proximity to each other.” Clark says she even paid child support when the couple split up after their seven-year relationship ended. Then, after Bearse came on the scene, says Clark, “I went from having my daughter half the time to every other weekend.”
That’s when Clark went to court. She lost the first round in July when a judge denied her the right to be considered the girl’s parent and also slapped a gag order on everyone involved in the case. Growing desperate for legal claim to her daughter, Clark fought the gag order and succeeded in having it partially lifted. Then she elicited public opinion on the matter, blasting first Pearce and her lesbian lawyers and then Bearse, who, according to Clark, footed Pearce’s legal bills. “What other choice did I have?” Clark says. “Because, dearly, justice was not going to happen.”
What bothers her most, says Clark, is that Pearce’s lesbian attorney, Diane Goodman, cited homophobic court precedents to prevail over her, in effect arguing against the legitimacy of lesbian families. Ironically, Goodman is known as a strong advocate of lesbian and gay family law who has written many coparenting agreements and who has donated her time to gays in need. She had often been referred clients by the Los Angeles Gay and Lesbian Center. So when a copy of Pearce’s court brief was obtained by the Southern California-based Lesbian News, the publication asked the center’s executive director, Lorri Jean (who is also an attorney), to render an opinion on the document.
Jean’s analysis prompted the center to yank Goodman’s name off its referral list. In particular, Jean appalled by the brief’s assertion that giving visitation or custody rights to nonparents would harm “the integrity of [the] social institutions [of marriage and adoption].” Although Goodman would not return calls from The Advocate asking for comment, Jean did confront Goodman on the issue. “When I had my conversation with her, I said, `This could be precedent-setting in that your brief could be cited to cement arguments by another homophobe or hired gun,'” Jean told The Advocate. “And what I think she said to me was, `Well, if people didn’t know about it’–i.e., if Tena didn’t raise the issue–`it wouldn’t hurt.’ But that’s not true. It was happening regardless of whether it became public.”
Clark’s critics have accused her of trying to exploit Bearse’s celebrity and affiliation with the HRC as a way to embarrass and pressure Pearce into sharing custody of the girl. And in fact, since Bearse and Pearce have refused to comment publicly on the case, the ensuing media frenzy has left the HRC in a precarious public relations bind. The organization’s executive director, Elizabeth Birch, is quick to denounce Pearce and her lawyers for their antigay court tactics but has refused to indict Bearse.
“It’s not Amanda,” Birch says. “It’s Dell. And the couple may indeed be directing the strategy in the lawsuit. Whoever is directing it, though–whether it be the couple or Dell alone–the strategies being used should not be supported by the community.” As to what Bearse’s future with the HRC will be, Birch emphasizes that Bearse has done a lot of good work in the area of civil rights but says she can’t speculate beyond that: “We’ll make our decisions based on what decisions get made by Dell and Amanda.”
Yet while Bearse’s fame may have complicated matters, it has brought long-awaited attention to lesbian custody issues. Even though a nonbiological mother in New Mexico won visitation rights as far back as 1992, the victories that followed, such as one three years later in Wisconsin, have been scarcely publicized and have failed to build consensus in favor of nonbiological mothers. In Philadelphia last September, a nonbiological lesbian mother known to the press only as J.A.L. fought and won a case against her former lover but complained that she was snubbed by some gays and lesbians who saw her case as “rocking the boat” in the sensitive arena of family law.
More public discussion about lesbian custody issues can only help change the law for the better, says Taylor Flynn, an openly lesbian attorney with the Southern California chapter of the American Civil Liberties Union. “Judges are people,” she says, and they are going to be more accepting of cases brought by lesbians and gay men to the extent that they have more awareness of gay rights issues.”
The spotlight on Clark’s case may have had another beneficial by-product as well. While Clark and Pearce were battling for their child, Bearse and her former lover, Amy Shomer, were widely rumored to be experiencing a similar struggle in their coparenting arrangement. Yet at the end of the year, Bearse agreed to sit down with Shomer and discuss their differences in a joint interview with The Lesbian News.
As for Clark, although she has ignited a firestorm of media hype and second-guessing, she still regards the issue as an intensely personal one. “All I’m doing is trying to be my child’s mom,” she says, adding that the struggle has taken a devastating toll on her, her new partner, and her three “stepchildren.”
Sometimes Clark flirts with the idea of just quitting. “But when I think about my kid and how I promised her that I would fight and never stop fighting, then I can’t stop,” she says. It is for her child’s future that she fights on, she adds, despite what others may think of her and her decision to speak out. “At the end of the day, when this court case is over with, everybody else will go on with their own business,” she says. “But if we lose, my child’s life changes. My child’s life changes, and so does mine.”
RELATED ARTICLE: The Advocate POLL
What factor should determine whether a biological parent must recognize a former gay or lesbian lover as a coparent?
# 1 Existing laws.
# 2 The coparenting agreement, if such a document exists.
# 3 The lover’s role in raising the child.
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