Op-Ed

The consequences of divorce and putting kids at the center of bitter custody disputes

It’s time to build a new system where families matter and the child’s health is the priority

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Jane Aronson with her sons.

As a school teacher and then pediatrician/adoption medicine specialist for the last 40 years, I have experienced the separation and divorce of hundreds of families. I have supported and advised many of these families and after my own divorce, felt more compelled and responsible than ever to make sure that I could be there for parents and children in their most challenging moments. A landmark ruling that has shifted the goalposts for same-sex parents seeking custody and visitation rights was handed down at the end of August and is now being tested in a New York courtroom — an occasion that has been deeply personal for me for several reasons. 

Divorce was for me the hardest time of my life; it was as hard as the death of my brother and father. It is in fact the death of a family. It was the death of my family as I had known it and I tried hard to create a new family for me and my kids. The sudden change from being with my kids every day to not seeing them for at least four days at a time was shocking. Sitting on the stairs opposite the front door as they left to be with their other parent made me sick and achy — and left me crying after they were out of sight, and missing them with a hurt I had no way to predict.

They went off to their week away from me, mostly happy because they loved their other parent and they were kids who longed for and deserved the normalcy of life, friends, school, and play. My former partner is only a mile away from me and the school district and friends remain the same. This is of course ideal. We all know about the families separated by many miles and hours of driving and even flights and train rides. Loss is deep for the children and parents. Even with the same school and friends, the back and forth is jarring. Clothes, books, laptops, toys, and favorite transitional objects (rabbits, blankets, bears) are hard to manage when left behind.

Determining which home is the “real” one can be very difficult, even when the homes are both in the “lifestyle” of the past life. Where the kids feel the most comfortable is something that falls into place and can be hard for the parent whose home is not the favorite. Keeping kids out of the middle can be very challenging and often is not achievable — as sad as that is to admit. Frankly, keeping kids out of the middle is really the goal — as elusive as it may be from time to time.

I have two sons who were adopted from abroad and my former partner in life did a second parent adoption for both boys after the arrival of each boy so that they had two committed/legal parents. We had a domestic partnership and then a civil union in New Jersey because marriage was not available at the time. We separated and were getting a divorce by the time marriage was legal for same-sex couples in the state of New Jersey. We co-parented for many years before our divorce and we continue to co-parent which is the essence of our “Joint Custody” arrangement which was the highest priority of our divorce even before the property settlement. Our civil union was viewed by the New Jersey court the same as marriage.

What does “family building” look like in same-sex couples when they adopt children or for that matter, give birth to children? There are many scenarios based on whether there is a legal adoption for the second parent. For those who didn’t do a second parent adoption there was no legal protection and that was tested in 1991. In the case of Alison D in 1991 the New York State Court of Appeals ruled that non-biological, non-married, non-adoptive parents are legal strangers to the children they raised with a same-sex partner. Hundreds of families were likely destroyed by this ruling. There were, however, always same sex couples who even without second parent adoptions, figured out humane ways to live in peace and provide their kids with the security and love of both parents, without the law to support this. They put the child front and center where all children belong after separation or divorce whether you are a same sex couple or a heterosexual couple and whether you are married or not.

It is now 25 years since Alison D and on August 30, 2016, in the case of Brooke S.B. and Elizabeth A., the New York State Court of Appeals ruled that a caretaker who is not related to, or the adoptive guardian of a child, could still be permitted to ask for custody and visitation rights. This will definitely change the lives of same-sex couples who never married, but co-parented children. This occurred while a case was being tried in the New York State Court where a same-sex couple was involved in a custody battle. I testified as an expert witness for one of the parties during the early stages of the trial.

The custody fight is painful and frankly the same as any custody fight for heterosexual couples. There was an adoption of a child by one parent because it was an international adoption; there is no same-sex couple adoption for any country outside the U.S. Then the other parent was not allowed to do a second parent adoption by the adoptive parent. There was no civil union or marriage for this couple. The child was co-parented and there was financial support provided for years by the non-adoptive parent to the legal adoptive parent. This support was for the child and the parent who had less resources.

Over the last four years the co-parenting was consistent and looked like any divorced couple’s calendars, alternate days, weekends, and equal visitation. Then the legal parent decided to leave the state and the co-parent decided to seek legal advice and retained an attorney to prevent the child from being taken out of the state and to have the right to continue co-parenting. The case is ongoing. The legal parent filed a counter suit to not allow the co-parent to parent at all anymore.

The case rages on in a small, old courtroom in downtown New York City, since August 22, with the possible end that the child who was co-parented for four years by two same-sex individuals will experience the loss of a parent after having been an abandoned orphan from abroad. 

There is no accusation of poor parenting here. There is no alcohol, or child maltreatment or abuse or anything that resembles the reasons for removal of a child from a parent. There is a struggle between two adults who once loved one another and made a plan to adopt a child and have a family. That changed over time, but the child was in fact co-parented from the time he landed at an airport outside of the country he lived in as an orphan.

I wonder why there are long sessions of cross examination for now over a month, when the right of this child is to have the two parents who have been co-parenting albeit somewhat contentiously, since he was adopted.

Where is the moral compass here? How do we as adults decide to strike out at a former partner and hurt the children that are in that family? How do we live with ourselves while kids reel with hurt and pain as they become the victims of a personal struggle between adults no longer in love?

The child was abandoned in a foreign country due to poverty. Now, he has been put in the middle because of the end of a partnership between two adults here in the U.S. Both partners love this child and should be co-parenting. The court should be working to help the adults work together for the benefit of this child. A joint custody agreement should be the work of all couples who parent after separation and divorce. Why are we not moving our legal system toward investing in “family building” rather than legal battles? Why are we not using mediators to help manage the transition from adult partnerships to co-parenting strategies? As an template for success, look to Montreal and other places in Canada, where mediation is paid for by the government and parents are required to participate in joint custody mediation for the health and welfare of the children.

It’s time to take a hard look at divorce and build a new system where families matter and the child’s health is the priority. Let’s be innovative and daring and move away from the court and toward the child to make better and more peaceful communities. Abandonment of vulnerable children can only lead to trauma and toxic stress and long term mental health issues for those children who sustain this kind of early abuse. That early trauma creates adults at risk for depression, substance abuse, unemployment, and emotional fragility that prevents a successful life and ends in a blighted future for our communities.

Whether gay or straight  — or “fluid” for that matter — parents should put kids first and kids should never be in the middle.

Dr. Jane Aronson is the CEO and president of Worldwide Orphans, a platform that transforms the lives of at-risk children and communities in need, and the director of International Pediatric Health Services, PLLC.

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