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Legal Defense

In 1992, Herland was presented with a request for financial assistance from a lesbian mother who had lost custody of her two children as a result of the mother’s sexual orientation. In response, Herland created the Legal Defense Fund (LDF) and began fundraising efforts to support the expenses of appeal.

The loss of custody experienced by the mother was overturned by the Oklahoma Supreme Court in July 1995 and Fox v. Fox set a resounding legal precedent to protect lesbian/gay parents against discrimination in child custody cases. In Oklahoma, sexual orientation can no longer be used in and of itself to deny a parent the right to raise her/his children. Fox v. Fox has since been used on numerous occasions to successfully stop attempts to take children away from their lesbian/gay parents.

As a result of their efforts in support of the Fox v. Fox appeal, Herland Sister Resources was recognized by the ACLU of Oklahoma with the 1997 Human Rights Award.

The Herland LDF continues to work to promote awareness of the Fox v. Fox precedent through its outreach, education, and attorney referral programs.

Oklahoma Supreme Court Rulings Favoring Lesbian/Gay Parents

Your sexual orientation is not the determining factor in a child custody fight in Oklahoma. Do not automatically assume that you cannot have custody or retain custody of your children based solely on your sexual orientation. Before you retain an attorney for a divorce or child custody case, make sure your attorney knows about Fox v. Fox and is willing to stand up with you on that point.

In 1995, the Oklahoma Supreme Court ruled that a lesbian mother is not, per se, unfit. Also, being a lesbian is not, by itself, enough to warrant a change in custody from the mother to the father. In that now famous case, Fox v. Fox, 904 P.2d 66 (Okla. 1995), the mother had lost custody to the father at the trial court simply because she was a lesbian. The lower court ruling was overturned by the Supreme Court which established a precedent which all courts in the state must now follow. In other words, it is the law in Oklahoma that the mere fact that a mother is lesbian (and from there we may presume that when the father is gay) is not enough to prevent her from retaining custody of the children.

Fox v. Fox Precedent

In the Fox case, the mother originally got custody of the two children in the divorce decree. Four years later, the father sought custody, claiming that because the mother was a lesbian and now lived in a lesbian relationship, she was an unfit mother. The legal standard for such a permanent change in custody in Oklahoma was well established in 1968. In Gibbons v. Gibbons, 442 P.2d 482 (Okla. 1968), the Oklahoma Supreme Court held that the parent asking for modification must establish:

– a permanent, substantial and material change in circumstances;

– the change in circumstances must adversely affect the best interests of the child; and,

– the temporal, moral and mental welfare of the child would be better off if custody is changed.

This means that the custodial parent's situation must have seriously changed since the divorce, that the change must be one that adversely affects the child's best interests and that the child would be better off in the other parent's custody.

In a later case, Gorham v. Gorham, 692 P.2d 1375 (Okla. 1984), the Oklahoma Supreme Court emphasized the necessity for the motioning party to show a direct and adverse effect on the child's best interests. In that case, the court recognized that it is not the function of the court to enter a judgment based solely upon individualized conceptions of morality. Therefore, the determinative factor is always the effect of the parent's behavior on the child.

In Fox, the evidence showed that the children had a loving relationship with both the mother and the father. Both children were doing well in school and were well-adjusted and happy. There was no evidence that the mother's behavior had an adverse effect on the children. Basically, the court ruled that the father did not present any evidence to prove the essential determinative factor - a significant change of circumstance that directly and adversely affected the children. So the father failed to meet the legal standard already well-established in Oklahoma law in 1968.

Upholding Fox v. Fox

The Fox case was upheld in an unpublished decision by the Oklahoma Court of Civil Appeals in 1998. (In Oklahoma, a published decision like Fox becomes a precedent, the law of the state. An unpublished decision is only useful to a lawyer in persuading a court to rule a certain way). In that case, Hall v. Maldonado, the trial court had refused to follow the Gibbons case as reinforced by Fox. The father claimed the mother was a lesbian and should lose custody of the child. The mother denied the claim that she was a lesbian but the court changed custody anyway. On appeal, the mother got custody back. The court said there was no evidence that the mother was a lesbian but "even if she is," there was not enough evidence to change custody to the father.

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