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by Ginger Rothe
A San Jose mother and her
three children are now a family
-- after almost two years of legal
proceedings in a child custory
The mother is a lesbian.
This is the only instance "that
I know of" in which an admittedly homosexual parent has received
custody of children in California,
said Herma Hill Kay, professor of
law at UC-Berkeley's Boalt Hall
School of Law.
And it is the first such case
in the United States according to
the research of Del Martin, a
grandmother and member of the
Lesbian Mothers' Union.
Ann (not the mother's real
name) first filed for dissolution of
her 15-year marriage in July,
Before the interlocutory decree
was granted last month, she had
been in court "seven or eight
times" and had three attorneys.
Roger (not his real name), the
father, had two lawyers. The trial
itself lasted three days.
"There isn't any way to explain the tension" of the lengthy
proceedings -- and of the results,
said the 34-year-old mother,
seated at the kitchen table in her
small home in San Jose.
She worries that "something"
will happen to make her lose the
children, believing she got them
"very precariously." The ruling
that granted her custody seems a
hollow victory to Ann.
Although she and her children
are now legally united, Ann cannot form the "family" she wishes
with Charla (not her real name),
the woman she loves and with whom
she has a "definitely secure and
The provisions of the custody
decision by Superior Court Judge
Gerald S. Chargin of Santa Clara
county limit Ann's communication
with Charla. Ann can see Charla
when her three children are in
school or with their father, who has
visitation rights two week-ends
per month and for three weeks in
the summer. Charla may not share
Ann's house, the family home that
the court ordered be given to
Ann's children -- a son, 14;
a daughter, 12, and another son,
9 -- voluntarily enrolled in summer school to allow their mother
time to be with Charla, Ann said.
The children provide her
central argument in seeking
custody, Ann said. "My husband
needed the children but the children
The three youngsters them
selves decided they preferred to
live with Ann, who told the children of her feelings for Charla after
she decided not to try to conceal
her lesbianism during the custody
case. But "we've never behaved
as other than very good friends in
front of the children," Ann said.
"I've tried to tell the kids
what's been happening all along,"
and the children have been "fantastically strong," she said.
Ann's '' real strength - - her
ability to withstand strong criticism of herself" impressed her
attorney, Joan K. Bradford of San
"I think people who do nothave
any friends among the Gay World
think that homosexuals are so very
sexual," the lawyer said.
With a restrained sweep of the
hand, Ann said, "It's very important to me that I don't raise
kids that feel thay have to be
homosexual or heterosexual --or
But the father fears the children may become homosexual. His
daughter will be surrounded by
lesbians, he feels, and thus may
follow that orientation. The boys
will '' either be subservient to
women or they'll turn into homosexuals," Roger said.
He believes his argument is
substantiated by Ann's parents,
who were divorced when she was
3. Roger said their marriage ended
because Ann's mother is a lesbian
-- a fact that Ann confirmed.
But "I don't know why my
parents divorced," Ann said, noting that it's hard sometimes to find
out the motives of one's parents.
Roger further believes the
children's "lives are going to be
ruined" by the court's decision.
Roger, 42, argued that he hadbeen
"more or less playing the mother
and father role" since the couple's first child was born, because Ann did not want children
and "a career was her main object," he said.
Roger said he "made the mistake of telling the mother off in
front of the children. They all of
a sudden felt sorry for her," and
thus chose to live with Ann, who
said Roger was a "good father"
until the dissolution proceedings
began two years ago.
Roger thinks the children are
too young to choose whom to live
with and that the court does not
give fathers an "equal chance"
to obtain custody.
"There's many fathers that
should have the children for custody, but they don't put up a fight
for them because the laws are not
fair," he emphasized.
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(Judge Chargin was unavailable
for comment. During The Chronicle's fourth call to his office, his
bailiff said the jurist "does not
wish to discuss this case with
The court's basic guideline in
California child custody cases, according to Ann's s
cording to Ann's attorney, is "the
best interest and welfare of the
children." Judge Chargin's decision "should be interpreted" to
mean thathomosexualityis "simply one factor to consider" in determining the children's best welfare, Herman Hill Kay said.
In addition to the children's
preferences to live with Ann, two
Santa Clara county agency reports
and the testimony of "expert Witnesses" were crucial to the mother's case, Mrs. Bradford said.
Both the departments of juvenile probation and of conciliation
recommended that the children be
placed with their mother.
The expert witnesses included
psychologist Dr. Arthur Bodin of
Palo Alto, Ann -- and Charia's
ex-husband, who, Ann and Charla
said, testified that he trusted Ann
to help rear his own children.
(Charla, a lesbian, was awarded
custody of her children -- a boy,
6; a girl, 8, and another boy, 10.
The case was uncontested and her
homosexuality was not brought out.
She began dissolution proceedings
almost a year after Ann.)
Dr. Bodin's testimony was bas-
and three with the children. Mrs.
Bradford said. Tape recordings of
part of the children's discussions
with the psychologist were played
privately for the judge, in the
presence of Mrs. Bradford and
Roger's attorney, Thomas Sal-
ciccia of San Jose.
Ann continues to see Dr. Bodin,
and Charla also is going.
Ann and Charla have known
each other about six years. Their
homosexual relationship began
about two years ago, but at the
time she filed for dissolution, she
and Charla had no plans for their
future, Ann said. About a year ago,
they decided they could build
a happy, monogamous life together,
Ann related. She repeatedly
stressed their "respect for each
Both Ann and her attorney are
concerned about the court's provisions limiting her communication
The court has awarded Ann
"custody of the children at the
same time denying her a way of
sharing expenses"--housing, food
transportation -- with Charla and
her family, Mrs. Bradford said.
Ann is now planing to appeal a
portion of the court's provisions,
the mother said.
Herma Hill Kay termed the
court's provisions "unusual." Had
Charla been the "other man,".
the law professor said the provisions probably would not have
been so restrictive.
Meanwhile, Ann, a 1971 grj
Meanwhile, Ann, a 1971 graduate of California State University, San Jose, is seeking a full-
time job as an occupational therapist.
Charla, who recently obtained
her teaching credential, is also
looking for full-time work.
Both women are "trying to evolve relationships" with men
friends -- mostly married --so
that their children will have a
strong image of the male. Despite
this, Ann is "aware of my feeling right now of kind of a general
distrust of men."
In seeking custody of her child-
red as an admitted lesbian, Ann
said, "I'm just trying to tell everybody that I'm not ashamed of my
relationship with Charla."
PLEASE HELP --
The case is being appealed because of the court's restrictions
on the mother's association. She
is virtually a prisoner in her own
home. Tax-deductible contributions should be made to the
Council on Religion and the Homosexual (CRH), 330 Ellis Street,
San Francisco, California 94102.
PLEASE, PLEASE HELP!!
COUNCIL ON RELIGION AND THE
HOMOSEXUAL sponsors a BENEFIT for LESBIAN MOTHER'S
COURT APPEAL autograph party
Del Martin and Phyllis Lyon's award winning book LESBIAN/WOMAN.