How Kinky and Non-Traditional Parents are Punished by Family Courts
American family courts—a series of state courts that specifically deal in family law, from child custody cases to divorce proceedings—are a distinctly unsung part of our judicial system. They are rarely discussed in the media and largely absent from the Hollywood spotlight; as a result, few people understand how they work.
But if you are a parent involved in a case subject to their rule, you could easily find yourself at the mercy of a judge with broad power to decide how much, if at all, you get to see your children. Family courts lack juries, so such decisions are delivered from the pen of a sole person. And the system does not treat everyone equally. According to numerous legal practitioners and scholars I spoke to, a widespread bias exists within the system against parents whose views or lifestyles fall outside the American norm, especially sexually.
Family court judges rule most often on two types of cases—arbitration after children have been removed from the care of unfit parents, and custody disputes following divorce or separation—and decide both based on the best interests of children involved. But legal experts who spoke with VICE testified to the near limitless discretion judges have to impose their own moral views.
"I can predict the likelihood of my success by zip code," said Diana Adams, a family lawyer from New York who has spent the last decade working with clients who are LGBTQ, polyamorous, kinky, or otherwise outside the mainstream. Because family court judges are elected by direct vote in many states, their tolerance of alternative lifestyles tends to correlate with that of the surrounding area. She represents clients in both New York City and more conservative areas of upstate New York, and says that the weight of a parent's sex life upon a judge's decision varies wildly from judge to judge, depending on their political views. She also provides advice to clients out of state, and has noticed a pattern: For clients like hers, Southern and rural areas are unforgiving places for cases to come before family court judges.
When the Supreme Court declared in Lawrence v. Texas that state laws against homosexuality were unconstitutional, it also ruled that states cannot establish laws based purely on the moral disapproval of lawmakers. But as legal scholars have noted, those who come before family courts lack the constitutional protections that apply to criminal cases, in which the discretion of an individual judge is limited and juries are involved. And because family court cases rarely go to appeal, very few rulings from higher courts exist to establish precedent on the boundaries of a family court's power. Those appellate rulings we do have generally confirm, rather than restrict, that power.
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