Allison Scollar

 

The Biological Child Dilemma, Especially for LGBT (by: Allison Scollar) 

 

When creating a family as a gay couple there are obvious challenges. We cannot make a baby the old fashion way. One of the parents can be biologically connected but not both by definition of the nature of same sex relationship. So what happens in divorce? It is common that the biological parent thinks they have priority. This actually is the dilemma. Marriage equality did not erase cultural and legal issues surrounding the Family dynamic of same-sex Parents. If both parents were a part of the child’s life and both parents participated in the upbringing of the child than why should either have priority? But generally the Courts do have biases.  The truth is that the non-biological parent walks into the Courtroom with one strike against them. It’s certainly an uphill battle.  So consider this before making a family and perhaps as awkward as the discussion might be if you’re the non-biological parent discuss what you would want in the unlikely event of separation or divorce.  Most of all, get your rights assured in writing legally before embarking on the creation of a family with child.

 

We (LGBT) won the right to marriage but divorces are complicated and the laws and the Courts have not adjusted to the new family reality. Gay families are everywhere and just like our hetro counterparts, we are getting divorces, having custody battles, and suffering in the Family Court system. Given my experience with the Court my recommendation is do anything you can to stay out of them because they are not rational, nor fair. In the end, I was awarded custody of my daughter despite the fact that I am not the biological parent, but it was quite a battle. I was awarded custody but with many strings attached. Strings I am not sure straight people have to deal with.  In my case the biological mother and father (who gave up his rights and obligations to my daughter so I could adopt) argued biology.  I only had one leg to stand on because I went through the long drawn out invasive experience of the second parent adoption that is allowed in New York. The custody battle was a brutal ordeal and one that sadly continues. If I had not adopted my daughter there was a very real and good chance I would never have seen her again. 

 

I love my daughter with all my heart.  I know the best for her is to have both of us in her life.  Even though numerous times I tried to settle with my ex, she assumed that she would be granted custody because she is the biological parent.  It’s a testimony to my dedication to my daughter that I persevered. Everything was thrown at me. Don’t get me wrong. I believe nature and nurture are both very important to raising a child however, not one at the expense of the other. I believe that we should have both been treated equally, but the Courts in New York only have jurisdiction to give one parent legal custody.  My ex rolled the proverbial dice and lost. She lost because of the specific facts of my case.  But the Court treated me (as the non-biological parent) as if I were a second-class citizen.  I felt this bias and so my ex continues to use the Court system as a sword.  

 

Being a parent is the most rewarding part of my life. Comparably making the baby is the easy part raising children is the work.  Dealing with the Family Court and all of its biases and ancient ways of defining Families and what roles the parents play, is archaic to say the least. The mantra of the court is “what is in the best interest of the child.” However in reality, the Court really doesn’t spend much time on the child’s interest. It is all about rights of the parents fighting. If the biological connection is the main consideration for child custody in the face of a divorce, than being a part of a family is very risky for the non-biological Partner. 

 

The Family Court sees parties fighting over custody  through the lens of an old fashioned definition of Family. There is the parent who provides, usually the father, and the parent who is the care-taker, the Mother.  However that family definition is the minority these days today as we have households with two moms, two dads, single parents, stay at home dad’s, and both parents working.  “Family” reality is quite different these days and unfortunately the Family Court moves slowly away its from old biases.   

 

Due to these old biases and the newness of the issues raised by single sex relationships, the cost of my custody battle was astronomical. And I am not alone. Carolyn Satenberg, a New York-based family law attorney who has worked with many couples in this situation, estimates that same-sex couples usually pay twice as much for divorces as their heterosexual counterparts. Triple the price if children are involved. The lawyers are the winners here. And the system encourages the perpetuation of the fight. The whole system is rigged against the parties and sanity. 

 

In a gay relationship the nonbiological parent should take note of the reality of the Court’s bias.

 

Allison Scollar is a is a consultant .  Her custody battle highlighted broke ground in that it highlighted antiquated Court’s approach in dealing with same-sex divorce and non-biological child custody. You can reach Allison on facebook