The Fears of Gay Men Divorcing

Gay men, especially fathers, who decide to divorce often face fears that straight men do not. The three that are often expressed are: bias in the courts, loss of parental rights, and the wife's reaction.

In most cases, these fears, while understandable, are "paper tigers" that many times when confronted properly can quickly crumble.

Well-researched empirical evidence as to how gay men are treated in Massachusetts' divorce courts has not been published. Unfortunately, some men like to rely on press reports and stories of treatment in other states. Since laws vary from state to state, these reports and stories mean nothing in Massachusetts. The decisions of our courts have mandated against the discrimination of gay men, my experience has supported this through anecdotal evidence confirming that in Massachusetts divorce courts, being gay does not result in biased treatment on questions of custody, support, and division of marital property.

Unfortunately, gay men report more negative reaction from prospective attorneys they consider retaining than from judges or court personnel.

On the specific issue of full access to his children, a gay dad can take comfort in the law which says that it is the child's best interest, not the dad's sexual orientation, that determines his relationship with his children. Dads who are not otherwise unfit will most likely share legal custody with the child's mother, meaning the continued mutual responsibility and involvement of both parents in the major decisions affecting the child.

For dads who seek sole physical custody (having the child live primarily with the dad), subject to parenting time with the mother, or for dads who seek shared physical custody (frequent and continued time with both parents), the news is also good. Actually, very good! Again, dad's gayness is not a basis for custody disqualification. More important, for the dad who has taken an active role in raising his child, the chances of getting sole physical or shared physical custody are better than ever.

The 1989 Gender Bias Study of The Supreme Judicial Court (our highest appellate court) reported that "...fathers who actively seek custody obtain either primary or joint physical custody over 70% of the time."

In cases where the father is and has been the primary caretaker, for example a stay/work at home dad, the probability is that the dad will have a better chance at obtaining sole physical custody in a trial. In such cases, an experienced attorney will look for ulterior motives if the mother uncharacteristically says she wants to become the primary caretaker. Her objection may be based on her anger with the father or an attempt to get a better settlement from the divorce. Too often a gay man, who is afraid of the divorce process, will concede issues that he most likely would win at trial.

An experienced effective attorney knows that good negotiating can often produce an agreement that avoids trial and the perception of concession. Since a parent-negotiated custody arrangement is always preferable to a court imposed arrangement, a good attorney/negotiator and a determined reasonable client can often change the game from all or nothing (which happens when one party concedes custody) to a win-win for both parents. A familiarity with the unique dynamics involved when gay men divorce can make a difference in negotiating custody disputes. Understanding these dynamics can help a man recognize the phases of acceptance his wife must undergo before she can accept her husband's decision and work toward an agreement. Unlike many "straight divorces," once the wife of a gay man accepts the inevitability of divorce, the two parents often begin to work together on issues relating to the children.

Of course, every wife reacts differently and every wife needs a different period of time to accept her husband's decision. Unfortunately, some may never fully accept it. For the gay man and his attorney, sometimes it is a matter of waiting a reasonable time for the wife's acceptance.

It helps to recognize that divorce produces a loss or sort of "death." The loss of a family as it had existed. As with any loss, a mourning period is needed before family members are able to move on. For a gay man, time, understanding, and help from persons with experience can help him get on with the rest of his life as a father and a happy gay man.