Tag Archives: Child Custody

A Personal Digression: Custody Case

I’ve fixed a few typos here and changed one instance of “polies” to “polyam folk.” Otherwise this is exactly as I posted it in the fall of 2011, including signed with a name I no longer use. My ex’s lawyer did in fact print this post out and ask me, while on the witness stand, to read my letter to the judge. Sadly, the judge was exactly as bigoted as I was afraid, and, well, the case ended badly. Though some long term good did come of it. Re-posted (but NOT revised) March 1, 2017.

I have nothing to say about pregnancy today. I’m having a bit of trouble focusing on much of anything at the moment.

You see, the fact that I write this blog is being used against me in a custody case. Posts from this blog have been printed out and brought into hearings to prove that I engage in polyamory and am therefore an unfit parent.

In a few weeks, I will be going into court for the custody trial. A court that will not care about all the research proving that polyamory is a healthy and ethical lifestyle, the published studies by Dr. Elizabeth Sheff, Dr. Geri Weitzman, and so many others. A court that will have no interest in the paper by law professor Ann Tweedy the Michigan University College of Law examining polyamory and its possible status as a sexual orientation and/or embedded personality trait (ie not a choice but a part of a person). A court that will be prejudging me – the root word of prejudice – based on nothing other then an assumption that anything other then monogamy is wrong, even though there is no evidence, no basis, no reason, other then knee-jerk ‘that’s not the way things are supposed to be’ emotional reaction behind the judging.

My saving grace is that for over a year I have only been in a relationship with my fiance, Michael. That I have previously written, on this blog, that that is the only relationship I am in.

Part of me is disgusted at my cowardice. That I am willing to hide behind that fact and not stand up in court and openly denounce their prejudice and hypocrisy. That I am not willing to fight for a lifestyle that is in no way unsafe or dangerous for my children.

But I can’t risk my children. And if the court demands that I live monogamously from now on I will do so.

Because I am judged guilty without benefit of trial.

I’ve seen the arguments in the community about whether polyam folk should push for legal rights, become politically active. So many say that ‘we shouldn’t rock the boat’, that ‘as long as keep our heads down we will be fine’, that ‘there is no point in exposing ourselves’.

Well, the courts will not educate themselves. The laws will not change themselves. And until other people stand up and say this is wrong, the attacks that are being made on me will keep happening to other people.

And what the hell, since I know people are printing out my blog to show the judge:

Your Honor,

If you should happen to read this, I will say here that to allow polyamory to be used against me in court, without knowledge of the nature of the lifestyle, or research which has been done on it is wrong. That there is no basis or reason to believe that polyamory is dangerous to my children, and that regardless of anything else, if I did choose to have other relationships when my children are with their father it would not affect them at all and should be nobody’s business but my own and my fiance’s.

Maybe this post will be used against me as well. Will you judge on my beliefs, your Honor? Does my willingness to say openly that there is nothing wrong with alternative lifestyles automatically make me an unfit parent, whether I engage in those lifestyles or not?

I will continue writing this blog, your Honor. I will continue to support everyone’s right to pursuit of happiness and freedom of expression – those grand words that are so often trampled in the cry of ‘shame! immoral! shame!’ with no basis other than the righteous indignation of those who think there is only one right way.

I just wish I was brave enough to stand up in court and say all this there.

Sincerely,
Jessica Burde

Polyamory and Child Custody (Guest Post by Gracie X)

Six years ago when my husband and new boyfriend all decided to cohabitate under the same roof– I felt pretty smug. I had created a situation where I got to have my husband of 20 years and a new lover as well. We converted our single-family home into a duplex. My husband and his new girlfriend moved into one side of the house, while I lived on the other side with my new man, Oz. Our children had their bedrooms under >But not everyone was thrilled for us. When Oz, told his ex-wife he was giving up his apartment permanently to move in with me, she slapped him with a custody suit. She was determined that their two children would never live in my home. She accused us of all kinds of perversities and insisted the household was unsafe for their children. During the hearings, we were basically investigated for being polyamorous. Thus began my painful education into the fears and bigotry surrounding my alternative chosen family.

It was a baptism of fire. We were evaluated by the courts for over year then suddenly the kids were allowed to move in– almost on a fluke. I wrote about this “best of times & worst of times” in my memoir “Wide Open”.

But even after Oz’s children moved in, we all felt vulnerable. Until there are laws that protect polyamorous people, swingers and those with any openness in their marriage—we are unprotected from people who would use our sexuality to attack us.

Here are three things that I would advise you do if you are confronted with child custody issues:

1) Shift the Focus off Your Sexuality

There are lousy polyamorous parents and lousy monogamous parents, there are also fantastic polyamorous parents and fantastic monogamous parents. Your sexuality does not determine your effectiveness and goodness as a parent. One mistake we made was trying to justify and explain our lifestyle to the courts. In hindsight this further put our sexuality on display. Better to do just the opposite. Focus on your excellent parenting skills. This is assuming you are a good parent. If you aren’t—you’re in trouble. Because similar to other bigotry– you will have to be a better parent than the average monogamous parent.

Your sexual habits will be under scrutiny. But my advice is to respond to attacks and queries in the reverse context. Describe how your bedroom has a lock on it and is on a separate floor. Subtext: Of course we do not have sex in front of our children! Describe your community, your village which supports your excellent parenting. Subtext: We do not have orgies in the living room while the kids play with Legos—we are a kid-orientated responsible family. Get letters of recommendation from teachers’, friends, co-workers, anyone who has witnessed your parenting and can accurately describe your parental strengths.

2. Hire a Good Lawyer.

But don’t stop there– educate your lawyer. Utilize local LGBT organizations for legal strategy. Gay rights activist groups have already dealt with the kind of situations and bigotry that you may be confronted with in court. You will likely need to work with your lawyer on a game plan. Don’t turn your case over to your lawyer without thoroughly discussing how they will represent and fight for you. Don’t hire a lawyer just because they’re polyamorous. This is a mistake. Hire a very sharp, aggressive lawyer with a proven track record in custody cases. Someone who pays attention, is open to collaborating on methods/strategy, understands your situation and will advocate for you with clarity and intelligence.

3. Take Really Good Care of Yourself.

When I look back at this time it was one of the most stressful of my life. I was on edge for the entire two years that we were embroiled with the courts and their appointed evaluator. Reach out to your support network, find ways to calm yourself down and deal with your stress. It’s extremely challenging to deal with the courts and even more so with the potential of losing your children– my heart goes out to anyone going through it.

You can e-mail Gracie X at GracieX.com.

 

This post is part of the Raising Children in Polyamorous Families blog series

Gracie X

Gracie X
Gracie X is a Writer, Director, and Actress. She is the author of “Wide Open: My Adventures in Polyamory, Open Marriage and Loving On My Own Terms” now available wherever books are sold.

She started a relationship odyssey nearly a decade ago that inspired her to create an unconventional polyamorous chosen family. For the past several years the idea that people can authentically construct their relationships, marriages, and families while meeting the needs of everyone involved– has cracked her wide open. She can’t stop writing, talking, or thinking about it. Her main message is do it your own way. “There is so much more spaciousness in our relationships to get our needs met—and there’s not one correct way to do it. There are a spectrum of options from monogamy to polyamory and all the nuances in between.” She encourages people to create a unique ‘relationship mission statement’ and set up their marriages, poly relationships and families in the way that works best for them.

She has been a principal on “Nash Bridges”, and numerous local TV and commercials. Her short film which she directed and co-stars premiered in the San Francisco Gay and Lesbian Film Festival. It has played at “The Outfest” in Los Angeles, Amsterdam, Germany, Seattle, Orlando, and on San Jose’s Public TV channel KTEH. Her plays have been produced by ‘Brava! For Women in the Arts”, The Climate Theater, Solo Mio, The Chi Chi Club, The Fringe Festival, The Marsh and Josie’s Juice Joint. Gracie X has toured throughout San Francisco, Vancouver and Los Angeles. A graduate of Bard College, she has worked with Peggy Shaw and Lois Weaver at the WOW Cafe in New York City.

Resources for Custody Cases Involving Polyamory

I don’t have nearly as much to offer here as I’d like. Unfortunately, resources for polyamory, and non-monogamy in general, are still slim on the ground. If you know of any additional resources, please include them in the comments.

Dr. Eli Sheff

Dr. Sheff is an educational consultant on sexual and relationship minorites. However she is better known in the polyamory community as one of the top researchers on polyamory. A few years ago she left academia and is now available as an expert witness for folks facing court challenges based on their life- and love-styles. Sheff’s testimony as an experienced researcher who spent 10 years gathering information on children raised in poly relationships can be extremely helpful in establishing that polyamory is not harmful to your children.

Poly-Friendly Professionals Lists

These lists are far from complete, but a good starting place for finding a lawyer or therapist in your area who is open to polyamory. If you can only find one poly-friendly lawyer, and can afford to hire two lawyers, I recommend hiring the poly-friendly lawyer to represent your kids. Your lawyer is required to act like they think polyamory is good for kids regardless of their personal thoughts. Your kid’s lawyer is required to act in what they think is the best interest of the kids. Which means if they support polyamory they are more likely to support you, if they are against polyamory they will almost definitely support your ex.

Poly-Friendly Professionals List

Love More Poly Professionals List

Sexual Freedom Legal Defense and Education Fund

According to their website, the SFLDEF provides:

  • Money towards legal and litigation expenses, such as attorney fees and expert witness fees.
  • Referrals to attorneys and expert witnesses knowledgeable about alternative sexual expression and willing to take cases dealing with it.
  • Public information and education about alternative sexual expression

for people in alternative sexual lifestyles. Really wish I’d know about these folks during my case. I suggest making them your first call.

This wraps up our review of polyamory in child custody cases.

Child Custody Cases: How to Protect Yourself

This month we are examining the impact of polyamory on child custody cases. Last week we reviewed who is at risk. This week, we are looking at ways you can protect yourself before and during a custody case.

Before a custody case

If the most important thing you can do, before any custody case starts, is to find out what your level of risk is.  First, you’ll want to be sure that your local child services or equivalent cannot take your children away and based on your relationships style.  At this time I don’t know of any jurisdiction where children can be taken just because of polyamory.  But it’s better to be safe.  The easiest way to be sure is just to make an anonymous call and ask about your jurisdiction’s rules. You may also be able to check their website.

Next, and perhaps most importantly, check with a lawyer or legal service about grandparents rights laws. Many lawyers offer a free 15 minute consultation. You may also find relevant information on grandparent’s rights websites online–but a local lawyer will be able to give you more complete information. In particular you want to know who, other than the other parent, can sue for visitation and/or custody and under what circumstances they are allowed to sue for custody.

Finally, if you and the child’s other parent/legal guardian are not married, determine (if you haven’t already) under what circumstances they can sue for custody.

Next, you need to make a choice (if you haven’t already) about whether or not to be out about your relationships. In an ironic way, once you are in a custody battle, the best protection for you and your children requires you to be out. However being out also increases your risk of ending up in a custody battle.

If you are out, or choose to be out, make sure your child’s teacher and doctor know your lifestyle. If the doctor disapproves, find a new doctor who is more open minded. You will probably be stuck with the teacher. With both, you want to do everything you can to be their favorite parent. Homework is always in on time. Vaccinations are always up-to-date. Be the first to volunteer as chaperon for class outings. Never miss a parent teacher conference. If the doctor asks for a test, get it done the same day. The same goes for your kid’s tutors, speech therapists, or anyone else who deals with your child in a “professional” capacity.

If you can, and have a good reason to, get your child into a therapist. If possible, you want a poly and/or LGBT friendly therapist. If not, be willing to take the time to educate your own poly-friendly professional. If you have any reason to believe a custody case is imminent, just tell the therapist that you expect to be in a custody battle shortly, and you want your child to have support for the stress and fears the battle might cause. Again, make sure the therapist knows your relationship style, and what your kids know about your relationships. This can be as simple as, “Kid may mention Uncle Ben, that’s my boyfriend who comes over for family movie night every couple of weeks. Kid considers him part of the family.”

By doing this, you are building up a group of people who can vouch for you as a parent, and know about your relationships. I told my kids’ therapist about my relationship style on a spur of the moment instinct. But when she was subpoenaed to appear in court, she said that yes she knew about my relationships, and she didn’t see what that had to do with the case. It didn’t effect the children in anyway. Her testimony didn’t have any impact on the trial (I had to “luck” into the most bigoted judge in the county), but it was a key factor in the appeals decision. If you have a less bigoted judge, and you can bring testimony from a therapist, teacher, doctor, or other professional that they knew about the relationships and didn’t see any harm (or better yet, saw some benefit), it can save your custody case.

If there is anything “alternative” in your approach to childrearing, now is the time to go mainstream. Co sleeping, breast feeding a child over two, skipping vaccinations, not having beds bc sleeping on the floor is better for everyone’s backs…any of that and more WILL be used against you in a custody case. A custody case, especially one between parents, often boils down to a “who’s the most perfect parent” contest. Polyamory is one black mark against you. You can’t afford anymore.

If your concern is the child’s other parent/legal guardian, and you are out, it is a huge, huge thing if they have ever participated in or approved of polyamory. Get that shit documented. Except in cases of a bigoted judge, having your ex being approving of poly in the past, and then try to use poly as a reason to take your kids, will just make them look like an ass in court.

If you are not out, bury yourself in that closet. You can’t prove a negative, folks. If your ex or other relatives have any inkling of your relationships, they can use it against you. In the US, innocent until proven guilty only applies in criminal court. In civil court, it’s your ord against theirs, and you can’t prove you are not poly–especially when you are. And if your ex has any kind of proof about your relationships, they CAN prove that you are lying. Being proved a liar in court is a quick path to losing custody. Judges don’t like being lied to. Seriously, if there is any chance that your opponent in a custody case might know or find out about your relationships, you are far better off being loud and proud, and fighting for acceptance. Before you end up in court, being in the closet may help keep you out of court. Once you end up in court, it’s an albatross around your neck.

Start saving for the appeal. Hate to say it, but its reality. Judges are a crap shoot. You can get one you listens to your ex’s arguments about poly, snorts and says “don’t waste my time.” Or you could get one who hears the word “polyamory” and immediately makes a decision from the bench saying he’s heard all he needs to, the kids are going to your ex bc you are obviously an unfit parent. I’ve seen the first happen (wanted to give that judge a hug). The second happened to my then-metamour. Who had tried the “hide in the closet route” and her ex whipped out a cell phone photo proving she as lying.

Point being, if you get the wrong judge, all your preparations won’t mean anything. If the judge does hand down a decision from the bench or ignores the testimony of Dr. Sheff or the therapist, or otherwise steps out of line in ruling against you bc of poly, an appeal may have a chance. But appeals are expensive. So start saving now.

During a custody case

Get everything else as perfect as possible. We’re all human, but if you can manage it, or if you can get help from others to pull it off, this is a time to be super human. Get the kids as close to perfect attendance as possible–no days off school w/o a doctors note. Be the parent that the teachers love. If you don’t have one, get a solid, steady income. Make your house immaculate, cooked dinner on the table at 5 every night, etc etc. Basically do everything you can to be Leave it to Beaver (w/o the 1950s gender roles, of course.)

This is a great place for the polycule and poly community to pitch in and support. Especially if the poly parent is in a situation of needing to work two jobs to make ends meet, struggling with chronic health problems, or anything else that interferes with creating  “perfect” home life. Folks can help clean, offer to tutor the kids after school, provide transportation to doctors,grocery shopping, etc, donate cookware, whatever is needed.

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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.

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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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Polyamory and Children: Child Custody Review

In the last three months, I have learned of four custody cases in which polyamory is being used as a reason for taking children away from their parents. That’s more than I’ve heard of in the last three years. So before we get into more generic stuff about raising children in a poly family, we’re going to spend a couple of weeks reviewing the way polyamory can and will impact child custody cases, and what you can do to protect yourself and your children.

If you are facing a custody case, make sure you talk with a lawyer or other legal expert. The information provided in this blog is for information purposes only.

Over the next few weeks I’ll be covering:

  1. Who is at risk
  2. How you can protect yourself and your children
  3. Resources

Some parts of this topic will be specific to the US, others will be useful for any poly folk.

Laws and legal practices affecting our children

If you’re been following this blog for a while, you’ll understand why today’s topic is a personally painful one. I’m not going to go as in depth as a usually do, in an attempt to avoid triggering myself.

If anyone else has knowledge or personal experience in this area, please feel free to share in the comics.

Our children are, for many people, both our most precious gift, and our greatest vulnerability. “Think of the children!” is an effective rallying cry for the defense of the status quo because even criminals want nothing to do with those who harm children.

I’ve previously covered how there is no evidence that polyamory is harmful to children, but until legal shit catches up with the research (and for tha matter, until we have more extensive and definitive research), people who are in poly relationships will face threats to their children.

Custody Laws

This will vary widely by jurisdiction. In the US there is no state that fully protects poly children in a custody dispute. Pennsylvania as some protection, but the precedent setting that protection is full of loopholes, and it’s going to take another poly family being dragged through the mud to determine the full extent of that protection.

Anywhere else in the US, the judge can summarily give your children to your ex just because you are polyamorous. In states that have grandparents laws, or otherwise allow third parties to sue for custody or visitation, your relatives, in-laws, and in some cases friends, can use polyamory as a justification to ask the legal system to give them control of your children.

From what I can tell, in the European Union the “best interests of the children” rule applies, leaving the door open for exes to claim that being raised in a poly home is not in the best interests f their child. How “best interests of the children” is determined will vary from country to country. I have no knowledge of custody in the rest of the world, and invite those with experience or knowledge to comment below.

Child Protective Services

Again, varies hugely by jurisdiction. Personal experience and anecdotal evidence is that child protective services usually don’t want to get involved in polyamory or non-monogamy. They have really cases of child abuse that puts kids in the hospital to deal with, they don’t want to worry about kids who are healthy, happy, and cared for, who just happen to have an unconventional home life.

That doesn’t mean a particularly bigoted or closed minded child protective agent can’t fuck with your family. Child protective services usually have broad powers to take children, and prove the abuse afterwards. Needing to prove abuse first leaves the risk the child will be further injured or even killed during the time needed to prove anything. Most child protective reps are careful exercising this power, because if a judge determines later they overstepped, they will be in trouble. But some reps may think they can trump up  reason to take your kids, and in some jurisdictions poly may be ruled a sufficient reason to take your kids–especially if the judge handling child protection cases is bigoted or closed minded themselves.

Paternity Laws

Laws establishing paternity, and a father’s responsibilities, vary widely. In some jurisdictions, the law assumes that a woman’s husband is the father of any children she has. Jurisdictions with this kind of law will often have hoops poly families need to jump through to establish a non-spousal father.

Not getting a legal marriage can avoid this issue, unless you run into common law marriage statutes.

Two Parent Laws

The assumption that every child has two, and only two, parents is legally common. it is also very hurtful to children raised in poly families who may lose all contact with a beloved parent due to their lack of custody or visitation rights.

A recent towards allowing three parents on a birth certificate has developed in the US and England, though only in limited cases.

 

Standard disclaimer– I’m not a lawyer, talk to a professional about any legal issues/concerns you may have.

 

Again, please leave a comment if you have any experience or knowledge to add to this topic.

 

More on laws affecting polyamory.