The Lesbian Family

A. The Right to Marry:

The right to marry a person of the same sex is not legally recognized in any state in the United States. Every state has marriage laws that define the requirements which must be met in order to get a marriage license. These include age limits, that the persons not be blood relatives, and that the persons be free from venereal disease. Although very few states' statutes specifically prohibit same sex marriages, the courts' have interpreted the marriage statutes as joining "men" and "women" in the union of marriage. For example, the Ohio marriage statute reads as follows:

Male persons of the age of eighteen years and female persons of the age of sixteen years, not nearer of kin than second cousins and not having a husband or wife living may be joined in marriage. Ohio Revised Code Sec. 3101.01.

Pro-gay advocates argue that the absence of a statutory prohibition against same sex marriages reveals a legislative intent to allow such marriages. Unfortunately, the statute has been interpreted by the courts to limit the union to "man" and "woman," thereby excluding homosexuals.

The state's refusal to recognize same sex marriages has often resulted in gays' not receiving the legal benefits that a traditional marriage provides. Married persons have income, gift and estate tax benefits which are denied to unmarried couples who are prevented from filing joint income tax returns. In ad dition, lesbians have no legal rights of inheritance and if one should die without leaving a will, the other would not receive anything. Moreover, the state's refusal to recognize same sex marriage means that the lesbian couple may not be able to enforce an other'wise valid marriage contract against each other for support or alimony.

Assuming that a statutory marriage between same sex partners is prohibited, can a common law marriage be found by the courts? In Ohio, five elements must be proved before a relationship may be said to be a common law marriage. These are (1) a present agreement to marry (2) made by parties who can legally marry (3) followed by living together (4) holding out as "husband" and "wife". As noted above, society and the courts have restricted the meaning of "husband" and "wife" to "man" and "woman". Under these circumstances, gays will have a difficult time proving that a common law marriage exists.

B. Child Custody Rights:

The right to child custody is the right of parents to live with and raise their own children. This right may be terminated only by an order of a Domestic Relations or Juvenile Court judge. It is a fundamental civil right protected by the United States Constitution. Unfortunately, the prejudice against lesbianism and homosexuality is often used to deny this right to a lesbian mother, whose greatest fear may be that her child will be taken away from her in a custody battle.,

Sometimes custody can be challenged even after the court has awarded custody to one party. For example, if one party discovers that the other is gay after the divorce decree is granted, that party may, return to court and seek custody because of the other's sexual preference.

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with the other parent would be in the best interests of the child,

Other courts use the "parental fitness" test to determine custody rights. Unlike the prior standard, the focal point is the parent, and a court will not award custody to an unfit parent, even if it cannot be shown that the unfitness of the parent harms the child.

Sometimes, the custody rights of the lesbian mother will be challenged by grandparents or other

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Johanna Vogelsang

relatives rather than the natural father. The courts have generally preferred to leave the child with a natural parent rather than grant custody to other relatives. Lesbians, however, have rarely been granted this preference and many courts have taken the children from the lesbian mother and awarded custody to grandparents or other relatives.

Reasons given by courts for refusing to grant lesbian mothers custody include: (1) homosexuality is a mental illness; (2) the child will become a homosexual when s/he grows up; (3) the child will be ridiculed and embarrassed by peers: (4) the child will be psychologically harmed by the parent's sexual preference; and (5) the presumption that the heterosexual parent will be better than the homosexual parent. The courts have wide discretion in awarding child custody.

In Ohio, the courts are split on this issue of lesbian 'custody. In one case, the child was removed from the mother's home because she was deemed unfit and the paternal grandmother was awarded custody. In another case, the court granted custody to a lesbian mother who lived with her lover. In the past few years there have been approximately ten documented cases of lesbian mothers' getting custody of their children.

final and a child can be removed from the mother's home even if she has had custody for some length of time. The court retains the power over custody until the child reaches the age of majority and can change the award at any time. Usually, a "material change in circumstances'' must be shown in order for the court to change the custody award.

C. Property Rights of Lesbians:

1. Wills

Lesbians who want to insure that after their deaths their lovers will receive anything must make a will naming the lover as a beneficiary. Without a will, a lesbian's property will be distributed to her children, parents or siblings. Even if she makes a will, there is no guarantee that someone else interested in the deceased's estate will not challenge the will on the grounds of undue influence or mental incompetency of the maker of the will.

Those people challenging a lesbian's will may argue that she was unduly influenced by the other party, and was forced to leave everything to that lover. A court might consider the relationship between lesbians so immoral as to constitute undue influence. Those challenging a will may also do so on the ground that the decedent was mentally incompetent to make a valid will. This argument rests on the fact that many people in society view homosexuality as a mental illness. Therefore, some believe that lesbians do not have the mental competence to make a valid will.

In order to guard against the above challenges, it is advisable that the lesbian consult an attorney, let the attorney know of her assets, name her lover as beneficiary, and identify those relatives who are to be excluded from the will. Furthermore, the lesbian should periodically make a new will naming the same lover as beneficiary as well as keeping the prior versions in the new will. Some repetition will be evidence of her intent, and those challenging the will will have to contest all versions of the will.

2. Acquiring Property

As there are no laws prohibiting people from jointly acquiring property, lesbians may own property together. There are three basic forms of coownership of real property, i.e., house, land. They

are:

(1) tenancy by the entirety;

(2) joint tenancy with right of survivorship; and (3) tenancy in common.

"Tenancy by the entirety" is unavailable to lesbian couples as it specifically applies to married persons. However, joint tenancy is not restricted to married partners. In joint tenancy there is no question of inheritance because the survivor will take all even if she is not an heir or named in the will. During the lives of both tenants, cach is viewed as owning the entire property, subject to the equal claim of the other; upon the death of one, the other's full ownership is freed from the claim of the other and unlike inheritance, the survivor continues her ownership in the property, now alone rather than jointly. For example, a joint bank account, "C or D, payable to either or survivor" entitles each party to one-half of the account while both are alive, and upon one's death the survivor is entitled to the entire account.

"Tenants in common" have separate but undivided interests in the property. The interests of each are inheritable by heirs or those named in the will upon death. A surviving tenant in common only takes the entire estate when she qualifies as an heir or is named in the will. For example, Ann and Mary bought property together as tenants in common. On Ann's death, her daughter Joan inherits Ann's tenancy in common in the property (Ann's part of the property). Joan becomes a tenant in common (co-owner) with Mary. Mary's interest is unaffected by Ann's death. If, on the other hand, Ann had no children and named Mary in her will, Mary would take the entire property upon Ann's death.

The majority of the courts, including Ohio, use the "best interests of the child" standard in deciding which parent is to be granted custody. Under this standard, all evidence concerning the child's total environment is important. The parent who, in the court's judgment, provides the best psychological and physical environment will be awarded custody. The parent's sexual preference should have no effect on a custody award unless it can be demonstrated that the parent's sexual preference would have an adverse impact on the best interests of the child. However, if the court finds the mother a lesbian, it ^mlay infer the adverse impact and thus find that living It is important to note that custody orders are not y

The courts usually place restrictions on the lesbian mother before granting her custody. Some courts will allow the mother to keep her child so long as she doesn't associate with her lover when the child is around. Other courts allow custody if the mother consents to therapy or is not open about her sexual preference. Finally, other courts have held that the mother's status of being a lesbian is harmful to the child and this becomes the reason for denying custody.

The advantage of both a tenancy in common and (continued on page 12)

June, 1979/What She Wants/Page 9