POLYPARENTSCUSTODY

Poly Parents Are Losing Custody of Their Kids in Brutal Divorce Battles

The ‘persecuted polyamorist’ is something of a cliche in pop-culture, but when it comes to splitting up, people in the lifestyle often face discrimination

Naomi had been married to her husband David for 15 years when he asked her if she was open to trying polyamory. After some hesitation, she agreed, and the two joined a lifestyle group called True Friends and Lovers in Alexandria, Virginia, in the D.C. area. Although neither had actually slept with another person outside the marriage yet, Naomi, a preschool owner, found that joining the group was a completely transformative experience. “Here I was being exposed to this whole lifestyle,” she recalls, “and I felt like I had probably [wanted to be] polyamorous my whole life.”

Eventually, Naomi (a pseudonym) befriended Eric, a man within the community who lived with his wife and an additional female partner. After a few months, Naomi began seeing Eric romantically. It was around that point that David started to become uncomfortable with her involvement with the poly community, despite the fact that he had also been intimate with other women in the community. “He’d be fine for a couple days, and then he’d say, ‘This isn’t how I wanna live my life,’” Naomi says. “Then he’d ask, ‘When’s the next party?’”

When Naomi said she wanted to enter a relationship with Eric, David was furious and demanded a divorce. On Valentine’s Day 2016, she was served with papers. David accused Naomi of abandoning their family, “even though we had taken on this emotional exploration together,” Naomi says. To make matters more complicated, the two had a then-8-year-old daughter, and David insisted that she not be allowed to spend time with Naomi or her new partners. “He was getting increasingly emotionally abusive in front of our daughter,” Naomi says. “He’d say, ‘Mommy’s gonna spend time with her poly family. She doesn’t love us. She doesn’t love you.’”

Over the next 18 months, Naomi fought for custody of her daughter, forcing her to dip into her retirement savings to buttress her legal costs. Throughout the contentious battle, she alleges her ex-husband sent her harassing text messages accusing her of being an unfit parent. During family court proceedings, David’s lawyer provided the judge with printouts of Eric’s profile on the kinky social media platform FetLife, as well as details about his sexual practices with his partners as “evidence” that Naomi would provide an unsuitable environment for her daughter. According to Eric, David also deposed him, his wife and his other partner during the divorce proceedings. “Policemen were coming to my door to bring me in to tell me my lifestyle is immoral,” Eric tells me.

Fortunately for Naomi, the judge was more sympathetic than David had anticipated, and he awarded Naomi 51 percent custody of her daughter. Yet Naomi says that David continued to try to prevent Naomi’s daughter from visiting her at her new home. Their relationship became so strained that the two had to hire a parent coordinator, an outside consultant who helps parents in contentious custody battles negotiate logistical parenting issues. “He thought people would dress provocatively and we’d talk about sex and it’d be inappropriate,” she says. All in all, Naomi estimates she spent about $60,000 on legal expenses; at the time we spoke, she had just been permitted by the parent coordinator to allow her own child to stay overnight with her.

Naomi’s struggle to gain custody of her child was immensely emotionally and financially draining; at various points throughout our conversation, she appears close to tears. Yet her experience isn’t uncommon among parents in her community, who often face a great deal of judgment and stigma from those outside the lifestyle.

Since polyamory has only been in the public discourse for a short time, there’s little research attesting to its effects on the family, or even assessing with certainty how common it is in the general population. The current consensus appears to be that while it’s likely more common than we think, the stigma surrounding polyamory discourages many from coming out of the closet, thus preventing an accurate estimate. “There’s such a wide range,” says Melody Kaiser, a master’s of science psychology candidate at the University of Calgary, who has conducted a literature review of polyamory studies. “I’ve heard 3 to 10 percent, all the way up to 30 percent. We really haven’t had many replicable findings.”

Although the “persecuted polyamorist” is something of a cliche at this point (largely due to some poly activists making misguided comparisons between the fight for LGBTQ rights and the fight for poly rights), it isn’t unheard of for poly people in general to face institutional discrimination, from being fired as a result of their lifestyle to being denied housing due to laws that restrict more than two “unrelated” adults from sharing a home. Such stigma arguably applies doubly to poly parents, who are often accused of confusing or even traumatizing their children by inviting other partners into the home; there’s also a pervasive belief in many couples’ therapist circles that poly relationships are doomed to failure, which leaves an irreversible negative impact on the products of these relationships. “It has shown to be damaging and destructive to a person as an individual, to the couple’s relationship and the family unit as a whole,” Boston-based psychotherapist Karen Ruskin told CNN in 2013.

While there’s little hard data attesting to this belief, the truth is that culturally, “there is just a lot of judgment people make about polyamory and poly parents and the children of poly parents,” says Jonathan Lane, a D.C.-based attorney who has represented poly parents during custody disputes. “Sometimes a polyamorous parent might be seen as a threat to one’s own relationship if they’re seen as available, like a single parent might be.”

Often, these assumptions about polyamory will bleed into kids’ own social lives. L. Sara Bysterveld, a 37-year-old polyamorous writer who lives in Calgary with her husband, their partner and their four children, says, “There have been a couple instances where their friends’ parents have found out and thought it was strange, and those kids stopped hanging out with them, which was really unfortunate.” To make matters worse, if parents are involved in heated custody disputes, it’s not uncommon for one parent to try to turn the child against the other by invoking their poly lifestyle. That was what happened with Naomi’s daughter, who occasionally saw the irate texts David sent her mother and would become anxious and fearful during pickups and drop-offs. “I could tell she was picking up on tension [between us],” Naomi says. “And I’d let her know later that daddy is working on his anger issues.”

Currently, there’s no legal protection against discrimination against poly people on the statewide level, says Elisabeth Sheff, a researcher and expert on poly families. “Sex and gender protections are focused on gender or sexual orientation, and it’s not clear if polyamory is a sexual orientation,” she explains. What this essentially amounts to is that it’s perfectly legal for employers to, say, fire an employee who has come out as poly, without facing any consequences for such a decision — and more often than not, the employee has no recourse.

There has been some effort to adopt anti-discrimination ordinances for people involved in what’s labeled “alternative sexual lifestyles,” most often on the local level. In 2017, the city council in Berkeley, California, for example, made headlines by instituting a non-discrimination ordinance “that will extend legal protections to polyamorous people, swingers and others involved in consensually non-monogamous relationships,” per an email from the Polyamory Leadership Network, which was instrumental in passing the measure. But to date, it’s the only form of protection for poly people on the books in the U.S., applicable only to people in the ultra-liberal college town, who would arguably not be subject to much discrimination anyway.

It’s also difficult for poly parents to adopt or foster children, particularly in red states, where social workers are less inclined to look positively on non-normative family arrangements. On subreddits like r/polyamory, poly redditors share tips as to how to convince case workers they’re suitable candidates, mostly by glossing over the fact that they’re poly in the first place. For polycules looking to adopt, the takeaway seems to be that “you just gotta hide your identity,” says Mack (again, like Naomi, a pseudonym), a 26-year-old genderqueer person who lives in Ohio and lives with her boyfriend and her girlfriend, a trans woman. Mack is interested in fostering or adopting, and they’ve asked multiple people in the community who have gone through the process for advice. “Most of them said you’d have to stay closeted, and [if you don’t], the chances aren’t good, unfortunately,” they explain.

But arguably the most common form of institutional discrimination against poly people is during custody disputes, particularly if one parent is no longer polyamorous or was never involved in the lifestyle. “Ex-partners’ co-parents, that’s a lot of where I’ve seen major discrimination,” says Bysterveld. “It’s partly a fear of ‘What is my child being exposed to?,’ but also if the other parent or the ex is already antagonistic, it gives them an easy, obvious wedge or a weapon to use.”

Because most custody disputes don’t make it in front of a judge, we rarely hear about them in the mainstream press. In many cases, a parent will threaten to use polyamory against their former partner during court proceedings, without the custody dispute actually getting to that stage. (This was the case for Bysterveld’s partner, whose ex disagreed with her lifestyle and threatened to use it against her in family court, though the case was settled shortly before it got to that stage.)

In that vein, Lane estimates that there are “certainly hundreds, and probably thousands” of cases each year where polyamory is used against another parent in a custody dispute, whether it’s successful or not. “Often, the partner [arguing against polyamory] will have been participating in polyamory themselves, and that gets into interesting territory,” he says. “There’s a lot of hypocrisy going on.”

In order to decide which parent gets custody, a judge has to determine what’s in the “best interest of the child.” Often, that decision is contingent on little more than where a case is being heard (judges in red states, for instance, have traditionally been less likely to deliver a verdict that’s favorable to the poly parent, says Sheff), as well as the judge’s personal beliefs regarding non-traditional sexual relationships. This is problematic, says Lane. “The ‘best interest of a child’ standard can be wonderful and terrible. It can be wonderful because it gives flexibility to consider what’s in the child’s best interest, but it leaves so much discretion to a judge.” What’s more, these decisions are often final: Even if the parent has the financial means to pursue further legal action, “it’s extremely rare for family court rulings to go on appeal,” says Lane.

On occasion, a third party, such as a grandparent or another close relative, will file for custody, claiming that the polyamorous parents are unable to provide a suitable environment for their children. Perhaps the most notorious example is that of April Divilbiss, a Memphis mother whose relationship with her two male partners was documented on MTV True Life in 1998. Her horrified mother-in-law filed for custody and won, and the judge ruled that the child should live with her paternal grandparents. The case infuriated the polyamorous community, which immediately took up a fundraising effort. Ultimately, Divilbiss decided not to appeal the decision, later admitting in an open letter to the poly community that the decision was in her child’s best interest. Nonetheless, Divilbiss still maintained that the court had discriminated against her: “Using polyamory as a general reason to determine household fitness is a horrendous crime against citizens in this city. It is a disgusting display of discrimination and bigotry right here within our own government.”

While Lane says that it’s increasingly less common for third parties to successfully gain custody of the children of poly parents, that’s not to say that it doesn’t happen. As an example, Sheff cites a case where a grandparent took her grandchildren to Texas on what was supposed to be a brief trip. A few days later, the children’s parents discovered that she had filed for custody of her grandkids in a rural Texas court. “She was only able to avoid kidnapping charges because a court said, ‘No, you were saving these kids for abuse,’” Sheff says, adding that the parents were only granted supervised visitation rights. (The case is currently pending appeal.)

For this reason, some poly parents live in fear that a relative or even Child Protective Services (CPS) will intervene to take their children away from them. “People are terrified of losing their kids, which I think is reasonable,” says Tamara Pincus, a D.C.-based therapist who is also poly (coincidentally, she also happens to be married to Eric, Naomi’s partner). Sheff says while this is relatively rare, it does happen, albeit usually in tandem with other risk factors, such as a history of drug or alcohol abuse: “[Polyamory] can add fuel to the flames of what drew [CPS’s] attention to the first place.”

These types of horror stories, as well as the prospect of being alienated from friends and family, ultimately serve to dissuade many poly parents from coming out as poly in the first place. “Honestly, I don’t see the advantage,” one poly dad who wanted to remain anonymous tells me. “We’re happy. We’re well-balanced. Why create drama?” And it’s not a totally uncompelling argument, especially given the fact that, the worst-case scenario of navigating custody disputes aside, many poly people say that it’s a lot easier to be poly than one would think. “The fear of discrimination is greater than the actual discrimination in most areas,” says Bysterveld. “Working with professionals, like kids’ doctors and teachers — it’s scary to come out to those people, but the general experience is that people are more accepting than expected.”

As cultural awareness of polyamory grows — in the last year alone, Professor Marston and the Wonder Women and the Virginia Woolf biopic Vita and Virginia showcased two extremely telegenic triads — the fear of the stigma surrounding polyamory will likely start to dissipate. But as is often the case, the law will probably be much slower to catch up. “As public awareness and acceptance grows, there’s certainly long-term potential for anti-discrimination ordinances” like the one in Berkeley, says Lane. But he doubts that any federal protections will be introduced anytime soon, nor does the poly activist community at large seem interested in (or able to) push for such change.

“A lot of the poly activism work that happens is on a small-scale, individualized level,” explains Pincus. “There’s not one leader, or one agenda. Some of the organizations, like Loving More, have been around for a really long time, but they tend to focus on things like visibility and having a place for poly people to meet each other. Not necessarily political action.”

Currently, non-biological third, fourth or even fifth parents currently have zero parental rights in the U.S., which has bleak, terrifying implications for many poly parents who raise children with their partners. “If my female partner were to die, obviously her kids would go to their dad, but then my kids wouldn’t see them anymore, and that would be awful, because they’re full-time siblings at this point,” says Bysterveld. “It would be nice if there was some plan in place to not totally rip the family apart if something did happen, and it sucks living knowing that’s a possibility.”

That said, there’s precedent for third parents obtaining parental rights, such as a 2017 New York court ruling that granted three parents custody rights of a 10-year-old boy. That case, as well as a similar ruling in Newfoundland last year, has emboldened some parents on r/polyamory to file for third-parent adoption. “Having parental rights for a third person is somewhat of a new frontier,” says Lane. “[But] the good news is that there’s often a strong argument to be made that it’s in the best interest of the child to have another loving adult take responsibility for them.”

If nothing else, that seems to be the biggest takeaway in talking to poly parents. Whether you agree with the morality of having sex with multiple people at the same time (or whether you agree with many poly activists’ insistence that their own struggle is on par with that of the LGBT community), in a world where parents are often stretched all too thin, it seems that there are few, if any, drawbacks to having more parents on hand to love and care for a child. And indeed, this squares firmly with Sheff’s research, which is based on interviews with more than 200 poly parents, as well as about 40 children of poly parents. Contrary to moralizing judges’ and grandparents’ assertion that a poly household is an inhospitable environment for a child, the kids of polyamorous parents may fare just as well — or even better — than the products of monogamous relationships.

“The kids learn emotional resilience from having so many role models and a familial focus on communication and caring about each other,” she says. “And especially important: They have a wide social safety net. There’s more people to provide more resources.”

Because Sheff’s research is largely culled from successful poly couples (i.e., couples who have been together for more than 20 years), she acknowledges that it likely isn’t representative of all poly families — just the super happy and well-adjusted ones. But as Charles, 31, a poly dad of three who lives in Florida, puts it: “Being a parent is like being on a team. If you’re a good team and you wanna bring on another teammate, then that’s not a bad thing.”

For her part, Naomi is now allowed to host her daughter for overnight visits — they recently went on a road trip to northern Michigan with Eric and his family. She says that while she still occasionally feels sad around the holidays (“It’s sad to have to wake up on Christmas morning and hand your daughter over to her dad”) — and despite the anguish of being separated from her daughter and the financial costs of the custody battle — if given the option, she’d make the choice to be poly all over again. Realizing she was poly and joining the poly community, she says, gave her the language to describe how she’d always felt inside.

“I’d spend $60,000 again to have the right to do this. It’s important to feel free,” she says. “If you want to be monogamous, then so be it. But for people who don’t feel they can have that, polyfidelity is just another way of life.”