Child Custody and Polyamory: Who is at Risk

Losing custody of their children is many parent’s nightmare. And I don’t mean losing custody as in “joint custody where you get your child every other weekend.” Granted, joint custody is rough on everyone, and there are very few parents who would happily opt out of over 50% of their kids’ lives.

But at the end of the day, there is a difference between losing custody in a dispute with your ex where you both need to be grown-ups and work out a schedule in the best interest of the kids, and having your kids taken from you by an ex, grandparents, or social services, with little to no say in their lives and upbringing, because your relationship is considered inherently unhealthy and grounds for declaring you an unfit parent.

Folks who remember the early 90s and prior will remember when it was practically routine for LGBT parents to lose their children simply for being who they were. It has happened to poly folk as well. And as the people around us become increasingly aware of the existence of polyamory, it seems to be happening more often.

The short version of “who is at risk” is “everyone.” There is, to my knowledge, no country or jurisdiction that explicitly prevents children from being taken on the basis of their parents polyamorous relationships. This includes countries where polygamy is legal–I know of one custody case in a country with legalized polygamy where a polyamorous parent is in danger of having their children taken due to their relationships. (Details withheld for privacy)

However, there are various levels of risk.

  • Every poly parent is at risk from their local version of child services, but this risk is usually low
  • Most poly parents in the US (and several other countries) are at risk from grandparents and other relatives, this risk is moderate and varies with the local laws
  • Many poly parents are at risk from their exes, and this risk is usually high.

Child Services

Child services goes by slightly different names everywhere. I’ve dealt with child protective services (CPS) and division of youth and family services (DYFS). I’ve heard of a number of other acronyms. These government organizations are charged with ensuring children have healthy homes and are not being abused or neglected. How they meet this charge varies.

A state like New Jersey is a tossup. On the one hand, New Jersey (DYFS) is liberal enough that taking kids just b/c their parents have an odd relationship is frowned on. On the other hand, if a DYFS worker doesn’t take the kids, and it later turns out there was abuse, they can go to jail as an accessory to the abuse. So there is a lot of cover-your-ass among DYFS workers and kids taken on the slightest evidence. The good news is the kids usually return home sooner or later.

No US state that I am aware of classifies a parent’s adult relationships as child abuse. You can’t be accused of being abusive just for being poly in the US. I don’t know of any country where you can be accused of abuse just for being poly, but my experience has been entirely within the US. Anyone remember the polygamous ranch in Texas that was raided about 10 years ago, and over 100 kids taken by child services? They were pretty damn clear in the media that the reason they took the kids was the polygamy. But if you dug into the details of the case, not one of the abuse accusations was actually about polygamy. The legal paperwork all focused on child sexual abuse (child brides), forced marriages, neglect, and other forms of physical abuse. Even in Texas they needed something more than “their parents weren’t monogamous” to actually take the children.

My experience with child services has been that even if they could take the kids just for being non-monogamous, they usually don’t want to. These people are dealing with cases where they find kids locked in cages in attics, kids that keep ending up in the hospital with broken bones, kids that are actually being sexually abused, etc. As long as they believe the children are healthy and happy with you, they don’t want to waste their limited time and resources when there are kids who really need their help. The exception to this is, of course, the bigots, who you will find in every line of work and see anything outside the norm as inherently abusive. Thankfully, at least in my experience and the experience of other poly parents I have heard from, these are relatively rare.

Grandparents and Other Relatives

In the US, most states have something called “grandparents rights” which allow grandparents (and sometimes other relatives) to sue for visitation or custody under certain set circumstances. The circumstances vary from “anytime they choose” to “only if the parents are divorced” to “the kids must have lived with the relatives for a year w/o their parents present.”

In parts of Great Britain, grandparents must petition the court for the right to sue for visitation or custody. Six provinces in Canada allow grandparents to sue for visitation as well.  If anyone has information on grandparents rights in other countries, please leave a comment.

To the best of my knowledge, Pennsylvania in the US is the only jurisdiction where grandparents can’t use polyamory as a reason to gain custody. This is the result of my own custody case. The appeal from my case set a state precedent establishing that polyamory is not a valid reason to overturn the presumption of children being better off with a parent than anyone else. Details of my case, and the appeals ruling, for those interested.

Your Ex

Per every lawyer and legal expert I have discussed this with, here’s the short and sweet version. If your ex is polyamorous, or previously practiced polyamory, they generally can’t use poly against you in court. If they are monogamous but gave their approval and acceptance of your poly relationships, they generally can’t use poly against you in court. If your ex is monogamous, and either did not know of your poly relationships or has made it clear from the get-go that they do not approve, then they can use polyamory against you in a child custody case.

No one I have spoken with knows of a jurisdiction which explicitly protects poly parents in a custody case with the other parent. Legal experts say my case’s precedent may apply between two parents. But the wording isn’t explicit.  It’ll probably take another appeal and Superior Court ruling to decide one way or another. With no protection for poly parents, the judge (or other decision maker in other countries) can use polyamory as a basis awarding custody to your ex. In extreme cases, they can also use it as a reason to deny or restrict your visitation.

In my case, the appeals court ruled against the trial judge based a law that did not explicitly protect poly parents. However PA law does say that a parent’s relationship which does not involve or negatively impact the children is not relevant. The combination of my children’s therapist stating on record that the children were not harmed by polyamory and the grandparents inability to prove evidence of harm, allowed the appeals court to invoke this law. Thanks to he work done by the LGBT community, many US states now have similar laws. These laws may or may not protect poly parents depending on their wording, interpretation and the judge you are dealing with.

An ex doesn’t need to prove you are unfit, or in any way a bad parent. They just need to prove they are a better parent or more fit. Unfortunately, bias against anything non-mainstream are come. Even in the best custody cases, poly parents facing a monogamous ex have the scales weighted against them.

Standard disclaimer

Next week, we’ll look at steps you can take to keep from losing your kids because of your poly relationships.

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